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2006 
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The Native Hawaiian Government 
Reorganization Act of 2005 








U.S. Commission on Civil Rights 

The U.S. Commission on Civil Rights is an independent, bipartisan agency established by Congress in 

1957. It is directed to: 

• Investigate complaints alleging that citizens are being deprived of their right to vote by reason of their 
race, color, religion, sex, age, disability, or national origin, or by reason of fraudulent practices. 

• Study and collect information relating to discrimination or a denial of equal protection of the laws 
under the Constitution because of race, color, religion, sex, age, disability, or national origin, or in the 
administration of justice. 

• Appraise federal laws and policies with respect to discrimination or denial of equal protection of the 
laws because of race, color, religion, sex, age, disability, or national origin, or in the administration of 
justice. 

• Serve as a national clearinghouse for information in respect to discrimination or denial of equal 
protection of the laws because of race, color, religion, sex, age, disability, or national origin. 

• Submit reports, findings, and recommendations to the President and Congress. 

• Issue public service announcements to discourage discrimination or denial of equal protection of the 
laws. 


Members of the Commission 

Gerald A. Reynolds, Chairperson 

Abigail Thernstrom, Vice Chairperson 

Jennifer C. Braceras 

Peter N. Kirsanow 

Arlan D. Melendez 

Ashley L. Taylor 

Michael Yaki 

Kenneth L Marcus, Staff Director 


U.S. Commission on Civil Rights 
624 Ninth Street, NW 
Washington, DC 20425 

(202) 376-8128 voice 
(202) 376-8116 TTY 
www.usccr.gov 


The Native Hawaiian 

Government 
Reorganization Act of 2005 

A Briefing Before 
The United States Commission on Civil Rights 
Held in Washington, D.C., January 20, 2006 



Briefing Report 




LC Control Number 



2006 


475305 











Table of Contents 


Executive Summary.1 

Recommendation.15 

Briefing on the Native Hawaiian Government Reorganization Act before the United States 
Commission on Civil Rights 

Gail Heriot .16 

Testimony on the Native Hawaiian Government Reorganization Act before the U.S. Commission 
on Civil Rights 

Prepared and submitted by Patricia M. Zell in her capacity as former Staff Director and Chief 
Counsel of the Senate Committee on Indian Affairs and delivered orally by Noe Kalipi .19 

Public Briefing on the Akaka Bill 

H. William Burgess .24 

The Authority of Congress to Establish a Process for Recognizing a Reconstituted Native 
Hawaiian Governing Entity 

Viet D. Dinh and H. Christopher Bartolomucci .30 

Dissenting Statement of Commissioner Michael J. Yaki.42 

Dissenting Statement of Commissioner Arlan D. Melendez.5Q 

Speaker Biographies.66 




























Executive Summary 


On January 20, 2006, a panel of experts briefed members of the U.S. Commission on Civil 
Rights on the Native Hawaiian Government Reorganization Act of 2005. Noe Kalipi, the 
Democratic Staff Director on the Senate Committee on Veteran's Affairs; H. William Burgess, 
Lead Attorney, Grassroots Institute of Hawaii; H. Christopher Bartolomucci. Partner, Hogan & 
Hartson; and Gail Heriot, Professor of Law, University of San Diego Law School made 
presentations and offered their expertise. The briefing was held at the U.S. Commission on 
Civil Rights headquarters in Washington, D.C. A transcript of the briefing is available on the 
Commission's website, www.usccr.gov, and by request from Publications Office, U.S. 
Commission on Civil Rights, 624 Ninth Street, NW, Room 600, Washington, D.C. 20425, (202) 
376-8128, piiblications@usccr.gov . The Commission received sixteen timely public comments 
from this briefing. Most of these comments were from individuals who oppose the legislation on 
the ground that it would be racially divisive. Comments supporting the legislation were received 
from the State of Hawaii’s congressional delegation, the American Bar Association, the State of 
Hawaii’s Office of Hawaiian Affairs and Department of Hawaiian Homelands, and a University 
of Colorado law professor. 


This briefing addressed the Native Hawaiian Government Reorganization Act of 2005 (S. 147 
and H.R. 309) proposed by Senator Daniel Akaka. The proposed legislation would: 

• Recognize a right of the Native Hawaiian people to reorganize the Native Hawaiian 
governing entity to provide for their common welfare and to adopt appropriate organic 
governing documents; 

• Establish a Commission to: (1) prepare and maintain a roll of the adult members of the 
Native Hawaiian community who elect to participate in such reorganization; and (2) 
certify that the adult members of the Native Hawaiian community proposed for inclusion 
on the roll meet the definition of Native Hawaiian, defined in the bill as either an 
individual “who is one of the indigenous, native people of Hawaii and who is a direct 
lineal descendant of the aboriginal, indigenous, native people who resided in the islands 
that now comprise the State of Hawaii on or before January 1, 1893; and occupied and 
exercised sovereignty in the Hawaiian archipelago, including the area that now 
constitutes the State of Hawaii” or an individual “who is one of the indigenous, native 
people of Hawaii and who was eligible in 1921 for the programs authorized by the 
Hawaiian Homes Commission Act or a direct lineal descendant of that individual”; 

• Outline the process for the reorganization, which includes forming a Native Hawaiian 
Governing Council; 

• Reaffirm the political and legal relationship between the United States and the Native 
Hawaiian governing entity upon certification required by the Secretary regarding the 
organic governing documents and the election of the entity's officers; 

• Extend Federal recognition to the governing entity as the representative governing body 
of the Native Hawaiian people; and 



• Authorize the United States, upon the reaffirmation of such political and legal 

relationship, to enter into negotiations with the governing entity to lead to an agreement 
addressing specified matters, including the transfer of lands, natural resources, and other 
assets, and the protection of existing rights related to such lands or resources. 

Previously, the Hawaii Advisory Committee to the Commission held community forums in 
August 1998 and September 2000 in which speakers addressed Congress’ joint resolution 
apologizing to Hawaii for the alleged role of the United States in the overthrow of the Hawaiian 
monarchy and the Rice v. Cayetano decision by the United States Supreme Court, respectively. 
Information presented at these forums was later summarized in the Committee’s 2001 report, 
Reconciliation at a Crossroads. This Committee had also issued a report, A Broken Trust: The 
Hawaiian Homelands Program: Seventy Years of Failure of the Federal and State Governments 
to Protect the Civil Rights of Native Hawaiians, in 1991 based on information presented in a 
1988 public forum and 1990 factfinding meeting. This report examined the extent to which both 
the Federal government and the State of Hawaii were meeting their trust obligations to Native 
Hawaiians under the Hawaiian Homes Commission Act of 1921. 


Noe Kalipi 

Ms. Kalipi delivered testimony that was prepared and submitted by Patricia M. Zell in her 
capacity as former Staff Director and Chief Counsel of the Senate Committee on Indian Affairs. 
Ms. Kalipi argued in favor of Senate Bill 147, the Native Hawaiian Government Reorganization 
Act of 2005 (S.147). She explained that Native Hawaiians are aboriginal peoples, present in the 
United States prior to the formation of the American republic. Congress may deal with Native 
Hawaiians under the same constitutional authority that Congress deals with Native American 
communities. The relationship is one based not upon race, but instead upon political status as 
citizens of separate native polities incorporated within the United States. 

The purpose of S.147 is to extend the federal policy of self governance and self determination to 
Native Hawaiians, providing parity in federal policies towards American Indians, Alaska Natives 
and Native Hawaiians. She explained that before the overthrow, the Kingdom of Hawaii was a 
distinct independent nation and a party to treaties with European nations and the United States. 
Unlike many other aboriginal peoples, the Native Hawaiians welcomed foreigners into their 
society. According to Ms. Kalipi, this generosity contributed to the overthrow of the monarchy, 
the establishment of a provisional government and the transfer of vast amounts of land to the 
United States. In her view, neither the fact that some non-natives were included in the Kingdom 
of Hawaii, nor the Kingdom’s dissolution by a now apologetic U.S. government, makes the 
Kingdom non-native. 

While Congress has enacted more than 160 statutes addressing the conditions of Native 
Hawaiians, the current ad hoc process fails to deal with Native Hawaiians as a sovereign entity. 
One example of the 160 statutes is the Hawaiian Homes Commission Act enacted by Congress in 
1920 to establish protected lands for the Native Hawaiians who had been devastated by the 
overthrow. Others involve land rights and access to natural resources. Once self-governance has 
been properly recognized, Native Hawaiians would be able to set aside ad hoc processes and 
interact with the federal government in a more conventional government-to-government 
relationship. 


2 


She explained the structure of the bill, including the establishment of two independent processes. 
The first provides for a reorganization of the Native Hawaiian governing entity. Once 
reestablished as a sovereign entity, Hawaii's indigenous peoples could establish the criteria by 
which participation in the governing entity would be determined. The second is a negotiations 
process which provides that, upon federal recognition, the Native Hawaiian governing entity 
would be able to negotiate issues such as the transfer of any lands, natural resources and assets 
commensurate with jurisdiction; grievances for historical wrongs; and any governmental 
authority issues with the State of Hawaii and the United States. She explained that this 
negotiations process would be inclusive and was intended to represent all the people of Hawaii. 
Before any transfers could be completed, enabling legislation at the state and federal levels, if 
necessary, would be enacted. 

She explained that efforts to preserve Native Hawaiian tradition, culture and custom are widely 
supported in Hawaii and are nonpartisan. The same sentiment carries over to S.147, which she 
said was supported by Hawaii's congressional delegation, the Hawaii State legislature, the 
Governor of Hawaii and the National Congress of American Indians and the Alaska Federation 
of Natives. 


William H. Burgess 

Mr. Burgess expressed grave concern that S.147 would permanently segregate the state of 
Hawaii and its people. He articulated three primary reasons to strongly oppose passage of S.147. 

• First, he explained that peoples of various races and ethnicities had been united under the 
Kingdom of Hawaii. S. 147 would break that unity. 

• Second, he challenged the analogy to Native American tribes. He disputed that any 
analogous Native Hawaiian entity had ever existed. 

• Third, he challenged the reference to President Grover Cleveland's remarks on U.S. 
participation in the overthrow of the Kingdom of Hawaii, citing the Morgan Report of 
1894. 

He began with a discussion of unity and equality in Hawaii. He explained that long before the 
establishment of the Kingdom of Hawaii in 1810, King Kamehameha brought non-natives onto 
his forces and into his family. Since then, non-natives have continued to intermarry, assimilate, 
and contribute to the social, economic and political life of Hawaii both as leaders in high 
positions and as ordinary citizens. He felt that the driving force behind S.147 was discrimination 
between citizens of the United States based solely on ancestry. He described several ways in 
which that unity would be disturbed. Each involved the distribution of privileges on the basis of 
race. He explained that Hawaii is the only state that gives homesteads restricted exclusively to 
people that are defined explicitly by race. He cited the definition of Native Hawaiians in the 
Hawaii Homes Commission Act, which encompasses any descendent with some part of the 
blood of the races inhabiting the Hawaiian Islands prior to 1778. Additionally, the Office of 
Hawaiian Affairs provides annual cash distributions of public land trust revenues to those 
satisfying the definition of Native Hawaiian. For emphasis, he explained the injustice of 
providing money and public resources to that group, at state expense, while public schools in 
Hawaii were crumbling. Moreover, these benefits did not flow only to the limited racial group of 
those with 50 percent or more Hawaiian ancestry, but also to people with even a drop of 


3 


Hawaiian blood. 


As to the Indian tribe analogy used by supporters of S. 147, Mr. Burgess disputed the basis upon 
which Native Hawaiians made a claim for parity with Native Americans. He disputed that Native 
Hawaiians were in fact identically situated to the Native Americans for whom recognition is 
granted. In his view, no group of Native Americans was recognized as a tribe simply because of 
ancestry. In each case, a longstanding political (not racial) entity was the subject of recognition. 
Conversely, he claimed that no Hawaiian tribe or government of any kind had existed for Native 
Hawaiians separate from the government of the rest of the citizens of Hawaii. 

Finally, he disputed the claim that wrongdoing on the part of the United States government had 
played a role in the overthrow of Kingdom of Hawaii, as alleged in the Apology Resolution 
passed by Congress in 1893. For support, he relied upon the Morgan Report of February 26, 
1894, an 800 page report of the Senate Committee on Foreign Affairs, which concluded that 
United States troops had landed as peacekeepers to protect American lives and property and had 
remained completely neutral. Based upon the Morgan Report, President Cleveland recognized 
the provisional government of Hawaii, and subsequently the Republic of Hawaii, as the lawful 
successor to the Kingdom of Hawaii, forever extinguishing claims of Native Hawaiians to the 
equivalent of tribal status. 


H. Christopher Bartolomucci 

Mr. Bartolomucci based his testimony on a memorandum he had coauthored with Georgetown 
University Law Center Professor Viet Dinh for the State of Hawaii's Office of Hawaiian Affairs. 
His remarks focused on Congress’ power to enact S. 147. In his view, the principal legal 
question presented by S. 147 was whether Congress had the constitutional authority to treat 
Native Hawaiians in the same manner it treated other Native Americans. He found that 
constitutional text, Supreme Court precedent, and historical events provided the answer— 
Congress’ broad power in regard to Indian tribes allows Congress to recognize Native Hawaiians 
as having the same sovereign status as the other indigenous peoples of this country. 

He explained that Congress' broadest constitutional power, the power to regulate commerce, 
specifically encompasses the power to regulate commerce with the Indian tribes. He explained 
the two year old Supreme Court decision in United States v. Lara , where the Court held that 
“[t]he Constitution grants Congress broad general powers to legislate in respect to Indian tribes 
powers that we have consistently described as plenary and exclusive.” Moreover, he identified 
one situation where Congress had used that broad power in the past to restore lost tribal 
sovereignty. In 1954, Congress terminated the sovereignty of the Menominee Indian Tribe in 
Wisconsin. In 1973, Congress reversed course and enacted the Menominee Restoration Act, 
which restored sovereignty to the Menominee Tribe. 

Pointing to the Menominee Restoration Act, the Supreme Court in Lara affirmed that the 
Constitution authorized Congress to enact legislation “recognizing the existence of Indian tribes 
and restoring previously extinguished tribal status.” Similarly, before Hawaii became a state, the 
Kingdom of Hawaii was a sovereign nation recognized as such by the United States. In 1893, 
American officials and the United States military aided the overthrow of the Hawaiian 
monarchy. A century later, in 1993, Congress formally apologized to the Hawaiian people for 
United States involvement in this regime change. Now, S. 147 is patterned after the Menominee 


4 


Restoration Act and would do for Native Hawaiians what Congress had done earlier for the 
Menominee Tribe. 

Anticipating opposing arguments, Mr. Bartolomucci concluded that S. 147 does not run afoul of 
the Supreme Court's 2000 decision in Rice v. Cayetano. Rice had ruled that the State of Hawaii 
could not limit the right to vote in a state election to Native Hawaiians. Rice did not address 
whether Congress could treat Native Hawaiians as it treated other Native Americans. Indeed, the 
Court in Rice expressly declined to address whether Native Hawaiians have a status similar to 
Indians in organized tribes or whether Congress may treat the Native Hawaiians as it does the 
Indian tribes. 

Some opponents of S. 147 have pointed to Rice in support of an argument that the bill violated 
the Equal Protection Clause. But Mr. Bartolomucci offered that the Supreme Court has long 
held that congressional legislation dealing with indigenous groups is political, not racial in 
character and is therefore neither discriminatory nor unconstitutional. Significantly, when 
Congress enacts laws for indigenous peoples it does so on a govemment-to-government basis. In 
fact, he reminded us, scores of federal laws and regulations exist relating to American Indians, 
Native Alaskans and Native Hawaiians, and none has ever been struck down as racially 
discriminatory. 

In conclusion, Mr. Bartolomucci stated that a decision by Congress to treat Native Hawaiians 
like other native groups is a political decision, one that the courts are not likely to second-guess. 
The 1913 case of United States v. Sandoval , involving the New Mexico Pueblos, the Supreme 
Court ruled that Congress could treat the Pueblos as Indians even though their culture and 
customs differed from that of other Indian tribes. The Court decided that Congress’ judgment 
was not arbitrary and that judicial review should end there. Mr. Bartolomucci opined that the 
different culture and customs of Native Hawaiians will likewise pose no barriers. Congressional 
action in S. 147 to treat Native Hawaiians differently is a political classification that is not 
arbitrary, and would therefore satisfy all constitutional requirements. 


Gail Heriot 

Ms. Heriot began by explaining the complexity of the body of Indian law and the presence of 
numerous contradictions. In her view, recognition of Native Hawaiians, an Indian megatribe, 
w ould be an unwelcome and major expansion to that body of law. Moreover, she felt that such 
an expansion would exceed Congress’s constitutional authority. 

First, she argued that the Constitution contains no clear statement of congressional authority to 
regulate existing Indian tribes as opposed to regulating commerce between the United States and 
Indian tribes. In her view, the power to authorize the creation of new tribes or even to authorize 
the reorganization of a previously existing tribe is not a regulation of commerce. She understood 
that the Commerce Clause must necessarily include some functions outside strictly commerce, 
but nevertheless felt that establishing tribes exceeded allowable non-commerce functions. 

Additionally, Ms. Heriot disagreed w ith the reference made by Mr. Bartolomucci that Congress 
had reconstituted the Menominee Tribe. First, she explained that the purported termination and 
restoration of sovereignty was not challenged before the Supreme Court. The more important 
distinction w^as that the Menominee Tribe had not been extinguished by an act of Congress. 
Instead, federal supervision ceased as part of a general policy to decrease federal supervision 


5 


over all Indian tribes. In contrast to Native Hawaiians, the tribe continued to exist; it continued to 
be organized as a corporation with the members of the tribe as shareholders of that corporation. 
Therefore, by recognizing the Menominee Tribe, Congress was not creating a tribe, nor was it 
establishing the mechanism to create a tribe. Congress simply recognized the tribe again and 
federal supervision was resumed. 

She emphasized that there are standards for determining whether a group is a tribe. One 
important factor is that the political entity must exist continuously. No Native Hawaiian entity 
has existed continuously, as evidenced by the mechanism by which S.147 defines membership. 

A tribe that exists does not need to be told by the United States Government who is in the group 
and who is not. 

Nevertheless, according to Ms. Heriot, another issue loomed larger. The State of Hawaii’s Office 
of Hawaiian Affairs (OHA) currently administers a huge public trust for the benefit of all 
Hawaiians. In practice the trust provides benefits exclusively for ethnic Hawaiians, including 
special home loans, business loans, and housing and educational programs. The constitutionality 
of the current system has recently been called into question as a result of the Supreme Court’s 
decision in Rice v. Cayetano and the Ninth Circuit's decision in Doe v. Kamehameha Schools , 
which is currently being reviewed by the Ninth Circuit en banc. Many expect other aspects of 
OHA’s special benefits programs will be challenged in court on equal protection and other civil 
rights grounds. Ms. Heriot believes that S.147 is, in large measure, an effort to preserve that 
system. 

In the Rice decision, the Supreme Court held that Hawaii’s election system, under which only 
ethnic Hawaiians could vote for trustees of OHA, was a violation of the Constitution’s Fifteenth 
Amendment, which prohibits discrimination on the basis of race in voting rights. In a later 
decision in the federal circuit courts, the Doe court held that the prestigious King Kamehameha 
Schools, which are privately run, cannot give ethnic Hawaiians priority over students of other 
races and ethnicities for admission without violating 42 USC Section 1981. 

Ms. Heriot explained that the best hope for those who favor the current Native Hawaiian benefit 
programs is to transform them from programs that favor one race or ethnicity over others, to 
programs that favor members of a tribe over non-members. She found the basis for such an 
approach in Morton v. Mancari, a case involving a hiring preference for tribal members at the 
U.S. Bureau of Indian Affairs, where the Supreme Court provided that “such a benefit is granted 
to Indians not as a discreet racial group but rather as members of quasi-sovereign tribal entities.” 
As Ms. Heriot explained, the Mancari decision, though, is a double-edged sword. If 
discrimination by the Bureau of Indian Affairs in favor of tribal members is not race-based, then 
presumably discrimination against tribal members by a state government is also not race-based. 
The very act of transforming ethnic Hawaiians into a tribe under S.147 would be an act 
performed on a racial group, not a tribal group. If it is done for the purpose of conferring very 
large benefits on that group, according to Ms. Heriot, then it would be an act of racial 
discrimination. 


Discussion 

Chairman Reynolds began the discussion summarizing key questions for the discussion period. 
He asked whether distributing benefits and burdens on the basis of race or ethnicity was 


6 


constitutional. Assuming that it was constitutional, he then asked whether that practice was 
something we wanted to do or expand. Before opening the floor to questions from 
Commissioners, Chairman Reynolds permitted the panelists to provide any clarifying remarks 
that might have. 

Mr. Bartolomucci began by explaining that in the Lara decision. Justice Breyer expressly stated 
that Congress had the authority to restore previously extinguished tribal status. In his view, that 
language clearly supported Congressional power to restore a tribe that had previously existed, as 
in the case of the Menominee. He added that he was not convinced that Native Hawaiians were 
not a continuously existing tribe. In his view, nothing that Congress or the federal government 
could do could take away their status or destroy their sovereignty. In response, Ms. Heriot 
distinguished the Menominee case from the Native Hawaiian situation by arguing that the 
Menominee Tribe did not disappear as a political unit. She referenced an unidentified case 
where, during the purportedly extinguished period, the Court recognized the sovereignty of the 
Menominee in the sense that they continued to be exempt from Wisconsin law on issues of 
fishing and hunting rights. However, if the Menominee continued to exist, then the case failed to 
establish precedence for restoration of Native Hawaiian sovereignty. 

Commissioner Braceras asked about the preexistence of Native Hawaiian sovereignty and the 
role it played in any decision to grant or restore sovereignty. Ms. Kalipi explained that if our 
government had dissolved the Hawaiian monarchy, granting federal recognition would be a 
restoration of a preexisting native government—a restoration delayed only because an alternative 
form of government was forced upon the Hawaiian people. Mr. Burgess disputed her claim, 
arguing that the Kingdom of Hawaii had never been a tribe—it was never exclusively of, by or 
for Native Hawaiians. He cited the first constitution and the civil codes of the Kingdom of 
Hawaii, which provided that naturalized foreigners had the same rights, privileges, and 
immunities as natives. He also claimed that ethnic Hawaiians were a minority of the inhabitants 
of Hawaii in 1893. To his knowledge, non-natives played important roles as judges, elected 
officials in the legislature, and cabinet members and business leaders. Consequently, restoring 
the Kingdom would not mean creating an exclusively ethnic Hawaiian government, but would 
instead mean forming an inclusive government of all the people of Hawaii. His comments 
elicited questions about the definition of tribe and the definition of Native Hawaiian. 

Explaining that Native Americans did not initiate the word ■'tribe,” Commissioner Melendez 
asked for its definition, positing that what we now know as “Indian tribes” exercised self- 
governance in any number of ways. Ms. Heriot agreed that many groups called tribes have very 
different political structures. Nevertheless, she believed that the law required a continuous 
political unit recognizable as a political structure. To her knowledge, every federally recognized 
tribe had a continuous political structure. Any tribal political structure that might have existed 
for Native Hawaiians in the past did not exist anymore. She emphasized that Congress did not 
have the authority to recreate an extinguished political unit. Mr. Bartolomucci found it 
somewhat ironic that it was permissible to recognize Indian tribes that had been pushed off their 
lands and put into reservations, but that federal recognition was forbidden if the federal 
government had completely extinguished sovereignty. 

Commissioner Taylor asked whether the key question was whether an identifiable structure 
existed at some point in time and whether an affirmative answer would imply that Congress was 


7 


merely recognizing or restoring a sovereign entity, rather than creating one. He asked whether 
the sovereign entity had been extinguished when the monarchy was overthrown. Hearing that it 
had not, he asked whether it was accurate to say that sovereignty resided in the people. Ms. 
Kalipi explained that Native Hawaiians believe that the monarchy was their government. She 
explained that any differences between the Hawaiian concept of monarchy and either the 
Western concept of monarchy or the governing entity for other Native American tribes should 
not be held against Native Hawaiians. 

Commissioner Braceras asked whether recognition of tribal status depended on the particular 
political history of the territory or whether it depended strictly on racial affiliation and cultural 
identification. Ms. Kalipi responded that it hinged upon both. The federal policy of self 
governance and self determination was based on the political and legal relationship that the 
United States had with the preexisting sovereign entity. It was impossible to separate the 
preexisting political entity from the culture that formed that political entity. Commissioner Yaki 
interjected that it was unreasonable to dispute that in Hawaii an indigenous sovereign 
government had been dissolved by the United States for its own purposes. 

Mr. Burgess, with the support of Ms. Heriot, reminded the Commission that indigenous peoples 
have no status and effect under the Constitution. He stated that, in the Rice case, the Supreme 
Court failed to accept the argument that all indigenous people are entitled to a special 
relationship. He explained that the same argument had been made in Arakaki v. State. According 
to Mr. Burgess, the courts, for a second time, rejected arguments based on indigenous status. 
Although he acknowledged an international movement to declare the rights of indigenous 
people, he noted that it had not yet been adopted by the United States. In the Rice decision, he 
said, the Court found that defining Native Hawaiians based on ancestry, was simply creating a 
proxy for race. Similarly, he believed that using ancestry instead of race in S.147 was 
impermissible racial discrimination. 

Commissioner Taylor asked whether recognizing a unique status for all indigenous people would 
be required if S.147 were to pass. Ms. Kalipi thought not. She explained that Congress had 
passed more than 160 laws and statutes to address the conditions of Native Hawaiians. Congress 
had previously established a political and legal relationship with Native Hawaiians dating back 
to 1893. This bill would simply formalize that political and legal relationship. 

Commissioner Taylor recognized the significance of the federal government choosing to deal 
with Native Hawaiians as a group, but he nevertheless asked why the government chose not to 
deal with other indigenous groups. Commissioner Yaki suggested that the federal government's 
action toward Native Hawaiians was a half-hearted attempt to provide some sort of recognition 
to the fact that our actions in the Hawaiian Islands were improper. He saw S.147 as a simple 
method of completing the process of creating federal recognition of Native Hawaiians, a process 
that had been neglected since 1893. 

Vice Chair Thernstrom asked for further clarification on whether the government in place in 
1893 had been a government exclusively of Native Hawaiians. Ms. Kalipi acknowledged that it 
had not been. She explained that only about 40 percent of the Kingdom was ethnically 
Hawaiian. She reported that Native Hawaiians were the majority of people participating in what 
was still their government. She emphasized that a sovereign entity had the power to make its 


8 


own decision as to how foreigners would participate. That the government had a mechanism to 
include foreigners did not make that government non-native. At this point Vice Chair 
Thernstrom asked whether it was appropriate to establish a new government that would have the 
ability to choose not to admit foreigners. Ms. Kalipi responded that the self-governing process 
would allow Native Hawaiians to decide if they wanted to admit foreigners or not. Making those 
decisions was consistent with the federal policy of self governance and self determination for 
indigenous peoples. 

Several Commissioners and panelists saw reason to distinguish Native Hawaiians from Native 
Americans. Chairman Reynolds asked whether the different history and relationship with the 
U.S. government for Hawaiians would justify different treatment. Commissioner Yaki 
responded that refusing to call Native Hawaiians tribes for purposes of the Commerce Clause 
and the Treaty Clause was not reading history correctly. Commissioner Braceras disagreed, 
adding that constitutional and legal questions require that you deal with the text as written. She 
maintained that tribes did not necessarily include indigenous peoples. 

Commissioner Melendez commented that fears of secession were unfounded and pointed out that 
Indian tribes would not be permitted to separate from the Union and neither would Native 
Hawaiians. He went on to state that under the Akaka bill Congress would retain control and 
could act to protect the civil rights of U.S. citizens. He then asked the panelists to compare the 
situation facing Native Hawaiians to that faced over the years by Native Americans. He 
concluded by stating that while it is impossible to right every wrong, some wrongs can and 
should be corrected. Ms. Heriot explained that she had no objection to the status of Indians in 
the United States. She distinguished Native Hawaiians by the many years during which nothing 
approaching a tribal entity existed in Hawaii. In her view, there is currently no functioning tribe. 
Rather than recognizing Indian tribes in the United States, Congress is seeking to create a 
mechanism that would allow a tribe to be created. 

The concept of creating a tribe was also questioned from the perspective of race. Commissioner 
Taylor was the first to ask whether this bill merely created a racial or ethnically based group. He 
asked whether this group of indigenous peoples needed to have a recognized political system in 
place in order for this bill to be viable. Ms. Kalipi explained that the bill did not create a tribe, 
nor a group distinguished solely on race. Instead she explained that before 1893 Native 
Hawaiians had a political entity in place. With respect to any interim governing body after the 
overthrow, she explained that Hawaiians did the best they could without a government as others 
would perceive a government. She believed that S.147 would correct that injustice by 
reorganizing a recognizable government of indigenous peoples, not by creating a tribe. 

Chairman Reynolds questioned the mechanism for selecting group membership. He asked 
whether it would work exactly like racial preferences in that the governing entity would have the 
ability to treat non-Native Hawaiians differently. Ms. Kalipi did not answer the question 
directly, instead clarifying that S.147 was based on the political and legal relationship that the 
United States has had with Native Hawaiians as an indigenous group, dating back to the 
relationships with a preexisting government. She also explained that S.147 defined Native 
Hawaiian for the sole purpose of identifying who can participate in the reorganization of the 
government. 


9 


This exchange prompted Commissioner Kirsanow to ask whether discrimination statutes and/or 
sovereign immunity would apply to the newly created sovereign governing entity if S. 147 were 
to pass. Ms. Kalipi explained that the bill as currently amended would include sovereign 
immunity provisions. With respect to the anti-discrimination legislation, she explained that the 
organic governing documents created by the commission are required to provide for the 
protection of the civil rights of the citizens of the governing entity and all persons affected by the 
exercise of governmental powers and authorities by the Native Hawaiian governing entity... She 
further stated that the Secretary of the Interior has approval power of the organic governing 
documents and is tasked with ensuring that civil rights protections are included. If the Secretary 
of the Interior found the organic governing documents to be unsatisfactory, she could decline to 
certify the entity and provide federal recognition. 

Vice Chair Themstrom asked about the difference between a racial group and a tribal group if 
the tribal group was defined by “one drop of blood.” Mr. Burgess and Ms. Heriot explained that 
membership in the group would be for lineal descendants of the indigenous peoples, not based on 
residence on the island. 

Commissioner Yaki rephrased an earlier question on whether this bill would be divisive. Ms. 
Kalipi responded that she did not believe the bill would be divisive. She explained that almost 
every elected official in the State of Hawaii had come out in support of the bill. She also 
explained that the bill provides a structured process to finally allow the people of Hawaii, native 
and non-native, to begin to discuss the longstanding issues resulting from the overthrow of the 
Kingdom of Hawaii. She referenced the frequency of misunderstandings and the widespread 
mistrust prevalent throughout the islands. She explained that there would be no immediate 
transfer of land if this bill was enacted. First, the governing entity would need to be reorganized. 
Second, the federal government would need to be satisfied that all requirements were met before 
federal recognition would be granted. Subsequently, the governing entity would be able to 
negotiate any proposed transfer of lands and authority to the governing entity. Before any 
transfer could take place, enabling legislation at the federal and state levels would need to be 
passed. 

Similarly, Commissioner Kirsanow asked how Native Hawaiians would be defined. Mr. 
Bartolomucci answered that the bill would not define membership in the Native Hawaiian entity. 
It would merely define the initial role of persons eligible to vote for an interim governing 
council. He explained the well established principle of Indian law that a tribe may decide who 
holds membership in the tribe. He also explained that the bill called for the Secretary of the 
Interior to create a commission of experts to determine Native Hawaiian ancestry and lineal 
descent. That commission would be responsible for establishing criteria for those able to vote 
for the governing entity and deciding whether individuals fall within that definition. Once 
membership is established, an initial election would determine an interim council. Later in the 
process, Native Hawaiians would decide who should be in the entity and how to define 
membership. 

Ms. Heriot explained that the most worrisome aspects of the proposed legislation were already in 
place. OH A already manages a huge program of special benefits based on Hawaiian ethnicity. 
This bill simply recasts those benefits that already exist in terms that are not based specifically 
on race. Commissioner Yaki asked whether we would still have those concerns if these benefits 


10 


were given by a sovereign tribal government, whether or not the sovereignty was continuous. 

Ms. Heriot explained that if the group had existed before, then it would not be a group that the 
United States is recognizing based on race. They would be recognized on the basis of existing 
sovereignty. Nevertheless, she disagreed that Native Hawaiians had sovereignty, because the 
law required that sovereignty be continuous. She insisted that Congress could not hand 
sovereignty to Native Hawaiians and then confer benefits based on that sovereignty. 

Commissioner Taylor expressed his agreement with the importance allotted self determination of 
peoples as they relate to governing bodies, but questioned how additional groups could be 
recognized without advocating separation form the United States. Ms. Kalipi amplified her 
remarks on the purpose of S. 147 by reminding the Commissioners that the federal government 
already has a federal policy of self-governance and self-determination with respect to some 
groups. Commissioner Yaki added that the structure provided by the government to provide 
recompense for actions taken by the government, such as the Hawaii Homes Commission, had 
only partially given the Native Hawaiians a feeling of control and autonomy over the decisions 
that were made. Concessions had not been obtained through a govemment-to-govemment 
relationship, as they had been for American Indian tribes or other sovereign nations. He 
emphasized that wanting to re-establish a govemment-to-govemment relationship did not mean 
that Native Hawaiians were not Americans. Responding to a question from Chairman Reynolds 
as to whether recompense meant reparations, Commissioner Yaki explained that the government 
had already initiated programs with Native Hawaiians; they had simply not done so in a manner 
that respects self-governance and self-determination. Ms. Kalipi echoed those remarks, 
declaring that S.147 was not about reparations. It was completely about process and the 
relationship between sovereign governments. 

Commissioner Braceras asked whether the United States would want to perpetuate a system 
whereby certain groups were treated differently than others. Mr. Bartolomucci responded that 
Native Hawaiians should be treated the same as Native Alaskans or American Indians. He 
thought that self-governance could be expanded to Native Hawaiians with some justice. Several 
Commissioners asked whether other groups of people could make similar arguments for 
obtaining rights through self-governance programs. In light of the high intermarriage rate for 
Native Hawaiians and recognizing that Hawaii joined the United States in 1959 with an 
overwhelming vote, Vice Chair Themstrom questioned whether further separation of Native 
Hawaiians was a good thing. 

Commissioners Kirsanow and Braceras asked what had precipitated this legislation, how this 
legislation would make the situation better for Native Hawaiians and why the current state of 
affairs was inequitable. Ms. Heriot explained that this legislation was connected to the Rice v. 
Cayetcmo decision. In her view, the legislation was focused on providing an alternate 
justification for the racial preference system that is operated by OHA. Ms. Kalipi explained that 
the purpose of S.147 was to allow the people of Hawaii to move forward as a state by providing 
a structured process to allow Native Hawaiians to deal with the longstanding issues of the 
overthrow such as mistrust and misunderstanding. She explained further that federal policies of 
self-governance and self-determination allow indigenous peoples to have greater autonomy over 
their own natural resources and assets. Hawaii is the homeland for Native Hawaiians. Others 
had come in and taken over the homeland, at least partly due to federal policy. Protecting what 
Native Hawaiians currently have and restoring what had been lost requires that the current legal 


11 


and political relationship be formalized. 

Staff Director Marcus asked the panelists whether any of the concerns about the bill would be 
addressed by a potential amendment that could ensure that membership in the governing entity 
would not be based on racial characteristics, but on lineal descent from persons who lived in 
Hawaii at a particular time regardless of racial characteristics. Mr. Burgess thought that a 
substitute could not be used. He explained that establishing criteria based upon living at a 
particular place at a particular time had been held to be a proxy for race. He believed that the 
language used in S.147 to define ancestry was similar to the definition criticized by the Rice 
court. Ms. Heriot agreed that ancestry was often simply a proxy for race. Nevertheless, she 
thought that more information was required to answer the question. If the bill were amended 
such that group membership was defined in terms of ancestry as of 1775 she thought it would be 
simply a proxy for race. On the other hand, if the group were defined based on ancestry as of 
1890, many people would be included who were not ethnically Hawaiian. So, she believed that 
such an amendment would satisfy the Rice test, though she remained concerned that the bill 
might still raise other constitutional issues. 


Public Comments 

The Commission voted to hold the record of the briefing open until March 21, 2006 to receive 
additional comments from the public. Sixteen such comments were received during that period. 
Most of these commenters wrote to express their opposition to the legislation, mainly on the 
ground that it would, in their view, formalize racially discriminatory practices. The State of 
Hawaii’s Congressional Delegation, the State of Hawaii’s Office of Hawaiian Affairs and 
Department of Hawaiian Homelands, and the American Bar Association each wrote to express 
their support. One commenter wrote to assuage concerns about the constitutionality of the 
proposed legislation. 

While most commenters oppose the legislation, the governmental and institutional commenters 
primarily support it. For example, the Hawaii congressional delegation, as principal sponsors of 
the legislation, noted that they are “joined in support for this initiative by virtually all of 
Hawaii’s other elected leaders, including. Governor Linda Lingle, [Hawaii’s] State Legislature, 
and OHA, as well as virtually all of the principal national organizations representing American 
Indians and Alaskan Natives, and most recently the American Bar Association.” The delegation 
also argued that there was “no question that the Akaka bill falls directly within the plenary power 
of Congress under our Constitution to establish national policy with respect to and behalf of our 
indigenous peoples.” Similarly, the State of Hawaii’s Department of Hawaiian Home Lands 
supports the legislation because it believes that the legislation would provide Native Hawaiians 
an “opportunity to manage and made decisions that impact their lands and their political and 
cultural identity.” The American Bar Association presented their recently adopted policy 
supporting “the right of Native Hawaiians to seek federal recognition of a governing entity 
similar to that which many American Indians and Alaskan Natives currently enjoy.” 

These supporters of the legislation took great pains to analogize the situation of Native 
Hawaiians with those of Native Americans. For example, Charles Wilkinson, Professor of Law 


12 


. x 

at the University of Colorado, argued that the “the right of self-determination and self- 
governance" of Native Hawaiians is premised upon “the sovereignty of America's indigenous, 
native people, ” as opposed to other groups “defined by reference to their race of ethnicity.” 
Similarly, the State's Office of Hawaiian Affairs stated that America's indigenous, native people 
are not defined by race or ethnicity, but “by the fact that their indigenous, native ancestors 
exercised sovereignty over the lands and areas that subsequently became part of the United 
States.” Likewise, the State's Department of Hawaiian Home Lands believes that the proposed 
legislation “advances the Congress' intent to treat Native Hawaiians as a political body, not a 
racial group.” The State of Hawaii's Congressional delegation argued that the legislation was 
needed to address the “ramifications of the overthrow of the Kingdom of Hawaii... [which] 
continue[s] to reverberate throughout our state and our communities...” 

Finally, supporters of the legislation attempted to allay any fears of racial balkanization or equal 
protection violations. The State's Congressional delegation pointed out that the proposed 
legislation only “outlines steps through which federal recognition may be extended, “leaving the 
negotiation and implementation of its provisions to “subsequent mutual agreements by Congress, 
our executive branch, the State of Hawaii, and the reorganized Native Hawaiian entity.” The 
American Bar Association argued that “Native Hawaiians, in seeking rights and privileges that 
other indigenous peoples of the United States enjoy under our legal system, are not 
compromising the rights of others but exercising their own rights...” 

On the other hand, the great majority of commenters wrote to express their opposition to the 
legislation. Many of these comments argued, in very personal terms, that the proposed 
legislation would be inconsistent with basic American principles of equality, traditional 
Hawaiian values, and their own personal ethics. In the words of one commenter, the legislation 
would “enshrine racial discrimination into law.” Some of these commenters stressed their own 
ethnic heritage, including Native Hawaiian ancestry, and argued that the legislation would be an 
affront both to their own personal identities and to those of their family members who lack 
Native Hawaiian blood. While space limitations preclude separate discussion of each letter, the 
following excerpts provide a representative sample of these statements: 

• “As a person bom and raised in Hawaii, of mixed parentage, I have always been proud of the 
color-blind nature of my homeland. My family includes people of every race, creed and 
color, including native Hawaiian as defined by the Akaka bill. The thought that portions of 
my family should be treated differently because of their genetic ancestry is anathema to me, 
and I beg you to oppose the Akaka bill, which would enshrine racial discrimination into 
law...The constitution of the Hawaiian Kingdom in 1840 declared that all men were “of one 
blood.” Throughout the history of the Kingdom, the Republic, the Territory and the State of 
Hawaii, we have been a multi-racial and multi-cultural society. To separate out only those 
who had ancestors pre-1778, and take away from them their history of racial equality, their 
history of civil rights, and demand that they must govern themselves separately because of 
race, is an insult to the history of all the peoples of the islands of Hawaii. It would be just as 
reasonable to turn back the clock on civil rights in the mainland United States, and insist that 
whites must govern themselves, and blacks must govern themselves - separate but equal all 
over again!...” Jere Krischel 

• “.. .It is appropriate to say that I am of Hawaiian, Caucasian and Chinese descent only 
because it shall be noted that I am a descendent of the indigenous peoples of Hawaii and do 


13 


not support the Akaka bill...If [the Akaka bill] comes to pass, I will no longer acknowledge 
my Hawaiian heritage as I will be forced to choose on which side of the fence to stand. I will 
choose the Anglo-American tradition of the right to life, liberty, property and the pursuit of 
happiness. This will prevent me from recognizing all that is Hawaiian in me. I consider the 
Akaka bill to be a proposal to violate my rights...” Kaleihanamau Johnson (Aiea, HI) 

• “...lam writing to ask for the civil rights commission to oppose the Akaka Bill on the 
grounds that it will divide our state among racial lines...I am of native American blood (Nez 
Pierce Indian) but cannot be considered eligible for benefits such as those desired by native 
Hawaiians...The Akaka Bill will destroy our way of life in Hawaii...” Garry P. Smith (Ewa 
Beach, HI) 

• “...I am a descendant of both: Kamehameha the Great, who united the islands and people, 
natives and non-natives and made Hawaii a model for the world: and the Mayflower pilgrims 
whose ideals of individual freedom and responsibility and self-reliance shaped the most 
inclusive and widely shared system of government in history: American democracy...The 
Akaka Bill would dishonor the unity and equality envisioned by Kamehameha the Great and 
the ideal of one nation, indivisible, composed of indestructible states, envisioned by the U.S. 
Constitution...” Rubellite Kawena Kinney Johnson (Honolulu, HI) 

Other commenters argued that the legislation is a form of “racial balkanization,” that it would 
harm the majority of Hawaiians, and that it would serve as a dangerous precedent to claims by 
other ethnic groups in the United States. Some commenters also attributed base motivations to 
the legislation’s supporters. 

The Commission considered and was informed by the full range of views expressed in its public 
briefing; written and oral statements provided by the panelists in support of and in opposition to 
the legislation; the work of the Commission’s Hawaii State Advisory Committee, including its 
formal reports; and all public comments timely received in response to the Commission’s public 
briefing, including comments from U.S. Senators, Congressmen, state officials, non-profit 
organizations and associations, and interested individuals. The Commission gratefully 
acknowledges the participation of countless individuals in this process, including participants 
from Hawaii, in Washington, D.C., and from other parts of the country. 


14 


Recommendation 


The Commission recommends against passage of the Native Hawaiian Government 
Reorganization Act of 2005 (S. 147) as reported out of committee on May 16, 2005, or any 
other legislation that would discriminate on the basis of race or national origin and further 
subdivide the American people into discrete subgroups accorded varying degrees of privilege. 


15 


Briefing on the Native Hawaiian Government Reorganization Act before the 
United States Commission on Civil Rights 
Gail Heriot 


Indian law—that body of federal law that governs the allocation of authority over matters 
affecting Indians among the federal government, the state governments and the various tribal 
governments—is not generally beloved by those who like law to be logical and tidy. It suffers 
from generation after generation of shifting policies. As a result of this constant flux, the law's 
contradictory foundations render it very nearly incoherent. Are tribal governments separate 
sovereignties whose powers are inherent in that status? If so, once a tribal government is 
recognized, is not the United States obliged to recognize and defer to those inherent powers 
regardless of whether they are exercised in a manner that adheres to federal law or the 
Constitution? Alternatively, do tribes derive their powers by federal delegation? If so, aren't 
those powers completely subject to the Constitution? Can the powers be both inherent and 
delegated? And if some powers are inherent and others are delegated, which powers are inherent 
and which are delegated? 

As I have suggested, the answers to these questions have important ramifications. At one 
extreme, if tribes are essentially foreign sovereign entities, their existence does not depend on 
Congressional legislation and dealing with them is mainly a matter for the President through his 
treaty power—which is precisely how the federal government did indeed treat them during the 
earliest years of the Republic. At the other extreme, if tribes derive their power through federal 
delegation, they cannot be given power by Congress that Congress itself does not enjoy. And 
presumably what Congress gives it can also take away. If it is some combination of the two, as 
arguably Chief Justice John Marshall suggested in Cherokee Nation v. Georgia, 30 U.S. 1 
(1831), when he called tribes “domestic dependent nations,” the legal issues become 
exponentially more complex and filled with potential land mines. 

Throughout most of American history, observers assumed that tribes would decline in 
significance. At certain points in history, federal policy was to encourage that decline by 
encouraging assimilation. At other points, federal policy was to resist that decline by protecting 
the tribal way of life. But in both cases, observers expected the decline would nevertheless 
continue. As a result, little attention was accorded to the development of a coherent framework 
for Indian law. 

Recently, however, some tribes have been experiencing an economic boom, driven in 
part by casino gambling and in part by other factors. To be sure, not all tribes and not all tribal 
members have benefited from that boom. But it has nevertheless ensured that more attention will 
be focused on clarifying and systematizing the basic issues of Indian law in the near future. 

But it has not happened yet. Recently, in the case of United States v. Lara , 541 U.S. 193, 
214 (2004), Justice Clarence Thomas called upon the Court “to re-examine the premises and 
logic of our tribal sovereignty cases” and suggested that much of the “confusion” in Indian law 
arises from “largely incompatible and doubtful assumptions” underlying the case law. Indeed, 
the Lara case itself is an example of the doctrinal disarray in Indian law. The case—which holds 


16 


that double jeopardy considerations do not prohibit the federal government from re-prosecuting 
an offender who has already been prosecuted in tribal court—generated no fewer than six 
separate opinions. Only a bare majority of five could be garnered for the Court's opinion. (Note 
that one of the implications of Lara is that a tribal government can re-prosecute an alleged 
offender who has actually been acquitted in federal court and vice versa.) 

The proposed Native Hawaiian Government Reorganization Act rides into this morass at 
full tilt. Because it would authorize the creation (or “reorganization’’) of what would be by far 
the largest tribe in history, it puts further pressure on an area of the law that already is showing 
signs of significant stress. And it raises all sorts of thorny problems. For example, can Congress 
authorize the Department of Interior to take steps leading to the creation (or even the 
“reorganization'’) of a new tribe? Or is it limited to recognizing those groups that are functioning 
as an independent social and political unit already and have been continuously doing so for a 
significant period of time? 

It is worth pointing out that the Constitution contains no clear statement of Congressional 
authority' to regulate existing Indian tribes (as opposed to commerce between the United States 
and Indian tribes), much less to create or organize additional ones. The authority to regulate 
existing tribes is sometimes said to derive from the necessity of dealing w ith reality'. The 
existence of Indian tribes in 1787 (as well as today) is a fact. Surely it was the intention of the 
Framers to confer power on Congress to deal with that reality, whether it's considered a happy 
reality, an unhappy reality, or something in between-or so the argument runs. 

But the power to authorize the creation of new tribes (or even authorize the 
reorganization of a previously existing tribe) is not merely the practical power to cope with the 
world as it is. New tribes and newly reconstituted tribes alter the status quo in significant ways. 
If the power to create them exists, what limits are placed on it? Does Congress have the 
authority to create an Indian tribe for Mexican Americans in Southern California? The Amish of 
Pennsylvania? Orthodox Jews in New York? (Religious groups would be among the groups 
most likely to desire tribal status, since tribes, if they are conceptualized as sovereign or quasi¬ 
sovereign entities are not governed by the Bills of Rights, except insofar as the Indian Civil 
Rights Act imposes that legal responsibility on the tribe. A religious group could thus arguably 
surmount the Establishment Clause difficulties dealt with by the Supreme Court in Board of 
Education ofKiryas Joel School District v. Grumit, 512 U.S. 687 (1994), by becoming an tribe). 

In examining the constitutionality of the proposed Native Haw aiian Government 
Reorganization Act, however, we can put all this aside, at least temporarily, because another 
issue looms much larger. In an age in w hich racial entitlements are an important feature of the 
political landscape in nearly every part of the country, the State of Hawaii is in a league by itself. 
Its Office of Hawaiian Affairs administers a huge public trust—worth billions—that in theory 
benefits all Hawaiians, but for reasons that are both historical and political, in practice, provides 
benefits exclusively for ethnic Hawaiians. Among other things, ethnic Hawaiians are eligible for 
special home loans, business loans, housing and educational programs. On the OHA web site, 
the caption proudly proclaims its racial loyalty, ‘‘Office of Haw aiian Affairs: For the Betterment 
of Native Hawaiians.” The proposed Native Hawaiian Government Reorganization Act is in 
large measure an effort to preserve this system. 


17 


The constitutionality of the system has recently been called into question as a result of the 
Supreme Court’s decision in Rice v. Cayetano, 528 U.S. 495 (2000), and the Ninth Circuit's 
decision in Doe v. Kamehameha Schools, 416 F.3d 1025 (9 th Cir. 2005). Rice held that Hawaii’s 
election system under which only ethnic Hawaiians could vote for Trustees of the Office of 
Hawaiian Affairs was a violation of the Constitution's Fifteenth Amendment, which prohibits 
discrimination on the basis of race in voting rights. Doe held that the prestigious King 
Kamehameha schools, which are privately run, cannot give ethnic Hawaiians priority over 
students of all other races and ethnicities for admission without violating 42 U.S.C. § 1981. 

Given the results in these cases, it is considered by many to be only a matter of time before other 
aspects of the OHA’s special benefits program will be challenged in court on equal protection 
and other civil rights grounds and ultimately found contrary to law. 

The best hope of those who favor these programs is to transform them from programs 
that favor one race or ethnicity over others to programs that favor the members of a tribe over 
non-members. As the Supreme Court held in Morton v. Mancari, 417 U.S. 535 (1974), a case 
involving a hiring preference for tribal members at the U.S. Bureau of Indian Affairs, such a 
benefit is “granted to Indians not as a discrete racial group, but, rather, as members of quasi¬ 
sovereign tribal entities.” In other words, it is not race discrimination; it is discrimination on the 
basis of tribal membership. 

The question then boils down to this: Can the United States government and the State of 
Hawaii achieve by indirection what they very likely could not have achieved directly on account 
of the Due Process Clause of the Fifth Amendment and the Equal Protection Clause of the 
Fourteenth Amendment? I would respectfully submit that the answer is no. That is not because 
Morton v. Mancari is not good law. It is. (Note, however, that the Mancari decision is a double- 
edged sword. If discrimination by the Bureau of Indian Affairs in favor of tribal members is not 
race discrimination then presumably discrimination against tribal members by a state 
government is not race discrimination). But it cannot apply to a tribal group that does not yet 
exist. The very act of transforming ethnic Hawaiians into a tribe is an act performed on a racial 
group, not a tribal group. When, as here, it is done for the purpose of conferring massive 
benefits on that group, it is an act of race discrimination subject to strict scrutiny—scrutiny that it 
likely cannot survive. 

The proof of all this is apparent if one simply alters the facts slightly. If the State of 
Hawaii were operating its special benefits programs for Whites only or for Asians only, no one 
would dream that the United States could assist them in this scheme by providing a procedure 
under which Whites or Asians could be declared a tribe. 


18 


Testimony on the Native Hawaiian Government Reorganization Act before the 
U.S. Commission on Civil Rights 

Prepared and submitted by Patricia M. Zell in her capacity as former Staff 
Director and Chief Counsel of the Senate Committee on Indian Affairs 
Oral testimony delivered by Noe Kalipi 


Overview 

There is a history, a course of dealings, and a body of law which inform the special status 
of the indigenous, native people of the United States. It is a history that begins well before the 
first European set foot on American shores—it is a history of those who occupied and possessed 
the lands that were later to become the United States—the aboriginal, indigenous native people 
of this land who were America's first inhabitants. 

The indigenous people did not share similar customs or traditions. Their cultures were 
diverse. Some of them lived near the ocean and depended upon its bounty for their sustenance. 
Others made their homes amongst the rocky ledges of mountains and canyons. Some native 
people fished the rivers, while others gathered berries and roots from the woodlands, harvested 
rice in the lake areas, and hunted wildlife on the open plains. Their subsistence lifestyles caused 
some to follow nomadic ways, while others established communities that are well over a 
thousand years old. Those who later came to America call them “aborigines” or “Indians” or 
“natives” but the terms were synonymous. Over time, these terms have been used 
interchangeably to refer to those who occupied and possessed the lands of America prior to 
European contact. 

Although the differences in their languages, their cultures, their belief systems, their 
customs and traditions, and their geographical origins may have kept them apart and prevented 
them from developing a shared identity as the native people of this land—with the arrival of 
western “discoverers” in the United States—their histories are sadly similar. Over time, they 
w ere dispossessed of their homelands, removed, relocated, and thousands, if not millions, 
succumbed to diseases for which they had no immunities and fell victim to the efforts to 
exterminate them. In the early days of America's history, the native peoples' inherent 
sovereignty informed the course of the newcomers' dealings with them. Spanish law of the 1500s 
and 1600s presaged how the United States would recognize their aboriginal title to land, and 
treaties became the instruments of fostering peaceful relations. 1 

As America’s boundaries expanded, new territories came under the protection of the 
United States. Eventually, as new States entered the Union, there were other aboriginal, 
indigenous, native people who became recognized as the “aborigines” or “Indians” or “natives” 
of contemporary times—these included the Eskimos, and the Aleuts, and other native people of 
Alaska, and later, the indigenous, native people of Hawai'i. 


1 Felix S. Cohen, The Spanish Origin of Indian Rights in the Law of the United States , 31, GEO. L.J. 1 (1942). 


19 



For nearly a century. Federal law has recognized these three groups—American Indians, 
Alaska Natives, and Native Hawaiians—as comprising the class of people known as Native 
Americans. Well before the Fourteenth and Fifteenth Amendments to the U.S. Constitution were 
adopted to address the effects of historic patterns of racial discrimination, the Supreme Court had 
recognized the unique status of America’s native peoples under the Constitution and laws of the 
United States. 


The Native Hawaiian Government Reorganization Act - S. 147 

The purpose of S. 147 is to authorize a process for the reorganization of the Native 
Hawaiian government, to reaffirm the special political and legal relationship between the United 
States and the Native Hawaiian governing entity, and to provide for the recognition of the Native 
Hawaiian government by the United States for purposes of carrying on a 
govemment-to-govemment relationship. 

Historical Background 

On January 17, 1893, the government of the Kingdom of Hawai'i was overthrown by a 
group of American citizens and others, who acted with the support of U.S. Minister John 
Stephens and a contingent of U.S. Marines from the U.S.S. Boston. One hundred years later, a 
resolution extending an apology on behalf of the United States to Native Hawaiians for the 
illegal overthrow of the Native Hawaiian government and calling for a reconciliation of the 
relationship between the United States and Native Hawaiians was enacted into law (Public Law 
103-150, Apology Resolution). The Apology Resolution acknowledges that the overthrow of 
the Kingdom of Hawai'i occurred with the active participation of agents and citizens of the 
United States and further acknowledges that the Native Hawaiian people never directly 
relinquished their claims to their inherent sovereignty as a people over their national lands to the 
United States, either through their government or through a plebiscite or referendum. 

In December of 1999, the Departments of Interior and Justice initiated a process of 
reconciliation in response to the Apology Resolution by conducting meetings in Native Hawaiian 
communities on each of the principal islands in the State of Hawai'i and culminating in two days 
of open dialogue. In each setting, members of the Native Hawaiian community identified what 
they believe are the necessary elements of a process to provide for the reconciliation of the 
relationship between the United States and the Native Hawaiian people. A report, entitled From 
Mauka to Makai: The River of Justice Must Flow Freely (Reconciliation Report), was issued by 
the two departments on October 23, 2000. The principal recommendation contained in the 
Reconciliation Report is set forth below: 

Recommendation 1. It is evident from the documentation, statements, and views 
received during the reconciliation process undertaken by Interior and Justice pursuant to 
Public Law 103-150 (1993), that the Native Hawaiian people continue to maintain a 
distinct community and certain governmental structures and they desire to increase their 
control over their own affairs and institutions. As a matter of justice and equity, this 
report recommends that the Native Hawaiian people should have self-determination over 


20 


their own affairs within the framework of Federal law, as do Native American tribes. For 
generations, the United States has recognized the rights and promoted the welfare of 
Native Hawaiians as an indigenous people within our Nation through legislation, 
administrative action, and policy statements. To safeguard and enhance Native Hawaiian 
self-determination over their lands, cultural resources, and internal affairs, the 
Departments believe Congress should enact further legislation to clarify Native 
Hawaiians' political status and to create a framework for recognizing a 
govemment-to-govemment relationship with a representative Native Hawaiian governing 
body. 2 

The Constitution of the United States addresses the status of the indigenous, native people of 
America. That status is founded not upon considerations of race or ethnicity, but upon the 
historical fact that the indigenous, native people occupied and exercised sovereignty over the 
lands and territories which were later to become part of the United States. Their sovereignty 
existed before the formation of the United States, and the United States Constitution recognizes 
their status as sovereigns, in the same clause of the Constitution that recognizes the sovereignty 
of the several States and the foreign nations. 

The laws of the United States reflect the constitutional status of the indigenous, native 
people of America. Upon this constitutional foundation, hundreds of Federal laws have been 
enacted that express the nature of the political and legal relationship the United States has with 
the sovereign governments of the native people of this land—American Indians, Alaska Natives 
and Native Hawaiians. 

Throughout America’s history as a nation, the Executive and Legislative branches of the 
United States government have entered into treaties and carried on a course of dealings with the 
indigenous, native people of America, and the Judicial branch of the Federal government has 
consistently reaffirmed that the treaties and conduct of relations with the indigenous, native 
people is based on a political and legal relationship. 

The U.S. Constitution establishes a legal framework under which the national 
government has the principal responsibility of conducting relations with America’s Native 
people. As it relates to the Native people of Hawaii, the United States has required in the Hawaii 
Admissions Act 3 not only that the State of Hawaii must assume a trust responsibility for 
approximately 203,500 acres of land that had previously been set aside under Federal law in 
1921 for Native Hawaiians in the Hawaiian Homes Commission Act, 4 but has further directed 
that revenues from lands ceded back to the State are to be used for five purposes, one of which is 
the betterment of the conditions of native Hawaiians. In addition, at the insistence of the United 
States, the Hawaii State Constitution explicitly recognizes the rights of Native Hawaiians to self- 
determination and self-governance. 


2 U.S. Department of Justice & U.S. Department of the Interior, From Mauka to Makai: The River of Justice Must 
Flow Freely , Report on the Reconciliation Process Between the Federal Government and Native Hawaiians 
(October 23, 2000), at 17. 

3 Pub. L. No. 83-3, § 5, 73 Stat. 4, 5 (March 18, 1959). 

4 42 Stat. 108 (July 9, 1921), as amended (Hawaiian Homes Commission Act). 


21 



The Congress Has the Constitutional Power and Authority to Address the 
Conditions of the Indigenous, Native People of America 

Although those who first immigrated to America's shores called the indigenous, native 
people they found here—“Indians”—the terms “Indians” and “Indios” were, for centuries, 
employed around the world to describe the indigenous, native people of other countries as well. 
Upon his arrival in Hawaii in 1778, Captain James Cook recorded in his diaries his discovery of 
the original inhabitants of Hawaii, referring to the native people as “Indians”. In a similar 
manner, the term “tribe” was the word Europeans assigned to the sovereign nations or groups of 
America’s indigenous, native people. 

While the U.S. Constitution vests the Congress with authority to conduct relations with 
Indian tribes, the U.S. Supreme Court has upheld the Congress’ exercise of its constitutional 
authority as applied to the indigenous, native people of Alaska - not all of whom are organized 
as Indian tribes. And since 1910, Congress has enacted over 160 Federal laws that address the 
conditions of the indigenous, native people of Hawaii. 

The indigenous, native people of America are not all “Indians” nor are they all organized 
as “tribes”, but they do share the same status under the U.S. Constitution and Federal law—a 
status which arises out of their inherent sovereignty and the fact that their sovereignty pre-existed 
the formation of the United States. 

As early as the 1830’s, U.S. Supreme Court Chief Justice John Marshall articulated these 
principles in the Court’s rulings, and from that time forward, the Supreme Court has continued to 
sustain the constitutionality of Federal laws that are built upon the legal foundation of the 
political and legal relationships that the United States has had for more than two hundred years 
with the indigenous, native people who exercised sovereignty in America prior to the 
establishment of the United States—American Indians, Alaska Natives, and Native Hawaiians. 

In contemporary times, it is the U.S. Supreme Court’s rulings that have expressly held 
that those laws are not based on race or ethnicity, and that Congress has the authority to address 
the conditions of the indigenous, native people of the United States. 5 

In 1934, with the enactment of the Indian Reorganization Act, the Congress provided a 
process for the reorganization of tribal governments in Indian country—governments that had 
been discouraged by U.S. policies and laws from exercising their inherent sovereignty. The U.S. 
Supreme Court has repeatedly sustained Congress’ exercise of its constitutional authority in 
enacting the Indian Reorganization Act. 

S. 147 provides a process for the reorganization of a Native Hawaiian government so that 
the indigenous, native people of Hawaii might give expression to their rights as one group of 


5 Morton v. Mancari , 417 U.S. 535 (1974). 


22 



America's native people to self-determination and self-governance, consistent with the United 
States' policy of the past 36 years. 


23 


Public Briefing on the Akaka Bill 
H. William Burgess 6 

For the last eight years, my wife and I have been advocating and litigating pro bono to bring to 
life in Hawaii the first of America's self evident truths: That all men are created equal; i.e., that 
every person, whatever his or her ancestry, is entitled to the equal protection of the laws. 

Since the summer of 2000, she and I, as part of our quest for equality for all, have been actively 
lobbying against the Akaka bill. 

Hawaiian entitlements and the Akaka bill have also had the attention of the Commission on Civil 
Rights for some time. In September 2000, the Commission sent several of its Commissioners 
and staff to Honolulu for a two-day forum devoted to the theory that Rice v. Cayetano (handed 
down by the United States Supreme Court on February 23, 2000) violated the civil rights of 
native Hawaiians and the way to overcome that was to pass the Akaka bill. 

That forum with the Hawaii Advisory Committee of the U.S. Commission on Civil Rights was 
entitled “The Impact of the Decision in Rice v. Cayetano on Entitlements.” I testified at that 
hearing along with the late brilliant attorney, Patrick Hanifin, and Ken Conklin. But despite our 
testimony, the lengthy report published after that forum concluded and recommended that 
respect for the civil rights of Native Hawaiians required that they should have the option of 
seceding from the United States and becoming an independent nation. 

Now, over five years later, that far-out recommendation has not been followed; but the Akaka 
bill is still pending and it is still supported by powerful well-funded interests and it hangs like a 
cloud over the Aloha State. The many people in Hawaii who oppose the bill are glad that the 
United States Commission on Civil Rights is now revisiting this important question. I urge you 
to now adhere to America’s highest ideals and recommend that Hawaii be preserved as one state 
undivided with equality and Aloha for all. 

Background of the Akaka Bill 

The original version of S. 147, commonly referred to as the “Akaka bill,” was first introduced in 
the year 2000 shortly after the Supreme Court, in Rice v. Cayetano, struck down the racial 
restriction on voting for the Office of Hawaiian Affairs. Because that decision threatened many 
other laws and programs for the “benefit” of Hawaiians, Senator Akaka with Senator Inouye's 
endorsement, proposed candidly to circumvent the Supreme Court’s decision by having 
Congress “recognize” Hawaiians (defined substantially the same way the Supreme Court had 
held in Rice to be “racial”) as the equivalent of an Indian tribe. 


6 Aloha for All, is a multi-ethnic group of men and women, all residents, taxpayers and property owners in Hawaii. 
We believe that Aloha is for everyone; every citizen is entitled to the equal protection of the laws without regard to 
her or his ancestry. For further information about the Akaka bill see: http:\vww.aioha4all.ore (click on Q&A’s) 
and http://wvvw.angelfire.com/hi2/hawaiiansovereittntv/QpposeAkakaBill.html or email hwburecss.a/hawaii.rr.com . 
7. Hawaii residents oppose the bill by a margin of 2 to 1. The comprehensive statewide telephone survey 
completed July 10, 2005 shows 67% responding to the question are against the Akaka bill. 


24 






The bill encountered resistance and did not pass in 2000 or subsequently. (It did pass a sparsely 
attended House in 2000 when Representative Abercrombie included it in a vote on non- 
controversial items.) Efforts to attach it as a rider to appropriations bills in 2000, 2001 and 2004 
were defeated. Hawaii's political leaders have resubmitted the bill to the 109 th Congress as S. 
147 and H.R. 309. It was expected to reach the Senate floor before August 7, 2005, but that was 
postponed because of Hurricane Katrina and the replacement of Supreme Court Justice 
Rehnquist and later. Justice Sandra Day O'Connor. 


A Radical Change in Existing Law 

Although the proponents assert the bill will simply give Native Hawaiians “parity” with the 
Federal Government's treatment of American Indians and Alaska Natives, that is not true. The 
bill would in reality make a radical change in existing law. The bill would give Native 
Hawaiians, merely because of their ancestry, something no American Indian has: the right to 
create the equivalent of a tribe where none now exists. 

For Native Americans, ancestry alone confers no special status. Membership in a tribe that has 
existed continuously is required. According to Census 2000, there are over 4 million people with 
some Native American ancestry. But less than 2 million of them are members of recognized 
tribes and only those recognized tribes can have a govemment-to-government relationship with 
the United States. 

Congress may “acknowledge” or “recognize” groups which have existed as tribes, i.e., 
autonomous quasi-sovereign governing entities, continuously from historic times to the present, 
see 25 C.F.R. § 83.7, but it has no power to create a tribe arbitrarily, see United States v. 
Sandoval , 231 U.S. 28 (1913). An attorney from the Department of Justice has put it succinctly, 

o 

“We don't create tribes out of thin air.” 

In 1790 (20 years before 1810 when he unified the Hawaiian islands), Kamehameha the Great 
brought John Young and Isaac Davis on to join his forces and welcomed them into his family. 
Non-natives thereafter continued to intermarry, assimilate and contribute to the governance 
under the great King and under every subsequent government of Hawaii since then, both in high 
governmental positions as cabinet members, judges, elected legislators, and as ordinary citizens. 

Unlike the history of Native Americans, there has never been in Hawaii, even during the years of 
the Kingdom, any “tribe” or government of any kind for Native Hawaiians separate from the 
government of the rest of Hawaii's citizens. The Hawaiians-only nation the Akaka bill proposes 
to “reorganize” has never existed. See Patrick W. Hanifin, To Dwell on the Earth in Unity: 

Rice, Arakaki, and the Growth of Citizenship and Voting Rights in Hawaii, at 


8 See generally Connecticut ex rel. Blumenthal v. United States Department of the Interior , 228 F.3d 82 (2nd Cir. 
2000). Alice Thurston argued on behalf of the Secretary of the Interior, “When the Department of Interior 
recognizes tribes, it is not saying, ‘You are a tribe.’ It is saying, ‘We recognize that your sovereignty exists.’ We 
don’t create tribes out of thin air.” Jeff Benedict, Without Reservation: How a Controversial Indian Tribe 
Rose to Power and Built the World's Largest Casino 352 (2001). 


25 





http://www.angelfire.com/hi2/hawaiiansovereignty/HanifinCitizen.pdf (last visited Mar. 15, 
2006). 

Our friends, neighbors, fellow professionals, judges, political leaders, aunties, uncles, nieces, 
nephews, calabash cousins, spouses and loved ones of Hawaiian ancestry are governed by the 
same federal, state and local governments as the rest of us. That is why Congress cannot use 
laws applicable to Indian tribes to create a new government in Hawaii. 

Senator Inouye, in his remarks on introduction of S. 147/H.R.309, see 151 CONG. Rec. S450 
(daily ed., Jan. 25, 2005), concedes that federal Indian law does not provide the authority for 
Congress to create a Native Hawaiian governing entity: 

Because the Native Hawaiian government is not an Indian tribe, the body of Federal 
Indian law that would otherwise customarily apply when the United States extends 
Federal recognition to an Indian tribal group does not apply. 

That is why concerns which are premised on the manner in which Federal Indian law 
provides for the respective governmental authorities of the state governments and Indian 
tribal governments simply don't apply in Hawaii. 


There Being No Tribe, the Constitution Applies 

The Akaka bill stumbles over the Constitution with virtually every step it takes. 

• As soon as the bill is enacted, superior political rights are granted to Native Hawaiians, 
defined by ancestry in S. 147 §7(a). The U.S. is deemed to have recognized the right of 
Native Hawaiians to form their own new government and to adopt its organic governing 
documents. No one else in the United States has that right. This creates a hereditary 
aristocracy in violation of Article I, Sec. 9, U.S. Const. “No Title of Nobility shall be 
granted by the United States.” 

• Also, under S. 147 §8(a), upon enactment, the delegation by the United States of 
authority to the State of Hawaii to “address the conditions of the indigenous, native 
people of Hawaii” in the Admission Act “is reaffirmed.” This delegation to the State of 
authority to single out one ancestral group for special privilege would also seem to 
violate the prohibition against hereditary aristocracy. The Constitution forbids the United 
States from granting titles of nobility itself and also precludes the United States from 
authorizing states to bestow hereditary privilege. 

• S. 147 §7(b)(2)(A) & (B) would require the Secretary of the Interior to appoint a 
commission of nine members who “shall be Native Hawaiian.” Restricting federal 
appointments based on race would violate the Equal Protection Clause of the Fifth 
Amendment, among other laws, and would require the Secretary to violate her oath to 
uphold the Constitution. 


26 


• Section 7(c) of the proposed legislation would require the Commission to prepare a roll 
of adult Native Hawaiians and the Secretary to publish the racially restricted roll in the 
Federal Register and thereafter update it. Same Constitutional violations as immediately 
above. 

• Under Section 7(c)(2) of the proposed legislation, persons on the roll may develop the 
criteria and structure of an Interim Governing Council and elect members from the roll 
to that Council. Racial restrictions on electors and upon candidates both violate the 
Fifteenth Amendment and the Voting Rights Act. 

• Under Section 7(c)(2)(B)(iii)(I) of the proposed legislation, the Council may conduct a 
referendum among those on the roll to determine the proposed elements of the organic 
governing documents of the Native Hawaiian governing entity. Racial restrictions on 
persons allowed to vote in the referendum would violate the Fifteenth Amendment and 
the Voting Rights Act. 

• Under Section 7(c)(2)(B)(iii)(IV) of the proposed legislation, the Council, based on the 
referendum, may develop proposed organic documents and hold elections by persons on 
the roll to ratify them. This would be the third racially restricted election and third 
violation of the Fiftteenth Amendment and the Voting Rights Act. 

• Section 7(c)(4)(A) would require the Secretary to certify that the organic governing 
documents comply w ith seven listed requirements. Use of the roll to make the 
certification would violate the Equal Protection Clause of the Fifth Amendment, among 
other laws, and would, again, require the Secretary to violate her oath to uphold the 
Constitution. 

• Under Section 7(c)(5) of the proposed legislation, once the Secretary issues the 
certification, the Council may hold elections of the officers of the new government. If 
these elections restrict the right to vote based on race, as seems very likely, they would 
violate the Fifteenth Amendment and the Voting Rights Act. 

• Under Section 7(c) of the proposed legislation, upon the election of the officers, the 
United States, without any further action of Congress or the Executive Branch, would 
“reaffirm the political and legal relationship between the U.S. and the Native Hawaiian 
governing entity” and would recognize the Native Hawaiian governing body as the 
“representative governing body of the Native Hawaiian people.” This would violate the 
Equal Protection clause of the Fifth and Fourteenth Amendments by giving one racial 
group political power and status and their own sovereign government. These special 
relationships with the United States are denied to any other citizens. 

• Under Section 8(b) of the proposed legislation, the three governments would then be 
permitted to then negotiate an agreement for the transfer of lands, natural resources and 
other assets; the delegation of governmental power and authority to the new government; 
the exercise of civil and criminal jurisdiction by the new government; and the “residual 
responsibilities” of the United States and the State of Hawaii to the new government. 


27 


This carte blanche grant of authority to officials of the State and Federal governments to 
agree to give away public lands, natural resources and other assets to the new 
government, without receiving anything in return, is beyond all existing constitutional 
limitations on the power of the Federal and State of Hawaii executive branches. Even 
more extreme is the authority to surrender the sovereignty and jurisdiction of the State of 
Hawaii over some or all of the lands and surrounding waters of some or all of the islands 
of the State of Hawaii and over some or all of the people of Hawaii. Likewise, the 
general power to commit the Federal and State governments to “residual responsibilities” 
to the new Native Hawaiian government. 

• Under Section 8(b)(2) of the proposed legislation, the three governments would be 
permitted to, but would not be required to, submit to Congress and to the Governor and 
legislature of the State of Hawaii amendments to federal and state laws that will enable 
implementation of the agreement. Treaties with foreign governments require the 
approval of two-thirds of the Senate. Constitutional amendments require the consent of 
the citizens. But the Akaka bill does not require the consent of the citizens of Hawaii or 
of Congress or of the State of Hawaii legislature to the terms of the agreement. Under the 
bill, the only mention is that the parties may recommend amendments to implement the 
terms to which they have agreed. 

Given the dynamics at the bargaining table created by the bill—where the State officials 
are driven by the same urge they now exhibit, to curry favor with what they view as the 
“swing” vote; where Federal officials are perhaps constrained with a similar inclination; 
and where the new Native Hawaiian government officials have the duty to their 
constituents to demand the maximum—it is not likely that the agreement reached will be 
moderate or that any review by Congress or the Hawaii legislature will be sought if it can 
be avoided. More likely is that the State will proceed under the authority of the Akaka 
bill to promptly implement whatever deal has been made. 


The Myth of Past Injustices and Economic Deprivations 

Contrary to the claims of the bill supporters, the United States took no lands from Hawaiians at 
the time of the 1893 revolution or the 1898 Annexation (or at any other time), and it did not 
deprive them of sovereignty. As part of the Annexation Act, the United States provided 
compensation by assuming the debts of about $4 million which had been incurred by the 
Kingdom. The lands ceded to the Untied States were government lands under the Kingdom held 
for the benefit of all citizens without regard to race. They still are. Private land titles were 
unaffected by the overthrow or annexation. Upon annexation, ordinary Hawaiians became full 
citizens of the United States with more freedom, security, opportunity for prosperity and 
sovereignty than they ever had under the Kingdom. 

Nor do Native Hawaiians suffer from the grinding poverty of Native American tribes. The 
Senate Indian Affairs Committee notes that “the vast majority of Native economies are 
moribund” “with unemployment averaging 45 percent” and that “per capita income for Indians 


28 


averages $8,284.’* See Committee on Indian Affairs, United States Senate, Views and Estimates 
of the FY 2005 Budget Request 3-4 (Mar. 3, 2004), at 
http://vvww.nihb.org/docs/fy05_scia_views.pdf (last visited Mar. 15, 2006). 

By contrast, Census 2000 shows per capita income for Native Hawaiians in Hawaii at $14,199 
and median family income of $49,282. For the 60.000 Native Hawaiians residing in California, 
where they are free from the incentive-smothering entitlement programs provided in Hawaii, the 
per capita income of Native Hawaiians is $19,881 and median family income is $55,770. 

Striking evidence that Native Hawaiians are fully capable of prospering, w ithout being wards of 
the Department of the Interior and without entitlements from the State of Hawaii, is shown in the 
Census 2000 reports of median per capita income of male, full time, year-round Native Hawaiian 
workers: $33,258 in Hawaii and $38,997 in California. 

Hawaiians today are no different, in any constitutionally significant way, from any other ethnic 
group in Hawaii's multi-ethnic, intermarried, integrated society. Like all the rest of us, some do 
well, some do not and most are somewhere in between. 


Rejection of Democracy and Aloha 

Today the State of Hawaii is, by law as well as by aspiration, a multiracial, thoroughly integrated 
state. The Akaka bill is a frontal assault on both Aloha and the American ideal of equality under 
the law. It would elevate one racial group to the status of a hereditary elite to be supported by 
citizens who are not of the favored race. As United States District Judge Helen Gillmor said in 
Arakaki I, ‘This Court is mindful that ours is a political system that strives to govern its citizens 
as individuals rather than as groups. The Supreme Court’s brightest moments have affirmed this 
idea (citing Brown v. Board of Education and other cases), while its darkest moments have 
rejected this concept (citing Dred Scott , Plessy v. Ferguson , Bradwell v. Illinois and 
Korematsu)'' Arakaki v. Hcrwaii, 2000 U.S. Dist. LEXIS 22394, *3-4 (D. Hi. 2000). 

For a comprehensive section-by-section analysis of the bill, please see Paul Sullivan, Killing 
Aloha: The Native Hawaiian Recognition Bill is Wrong for Native Hawaiians, Wrong for the 
State of Hawaii, and Wrong for the United States , at 

httpV/vvw'w.angelfire.com/hi5/bigfiles2/AkakaSullivanO 12505.pdf (last visited Mar. 15, 2006). 


Keep Hawaii One State Indivisible 

Carving up Hawaii into separate sovereign enclaves would hurt all of us, whether we are of 
Hawaiian or any other ancestry. A house divided against itself cannot stand. The Constitution 
“looks to an indestructible union, composed of indestructible States.’* Texas v. White, 7 Wallace 
700 (1869). 


29 


The Authority of Congress to Establish a Process for Recognizing a Reconstituted 
Native Hawaiian Governing Entity 
Viet D. Dinh 

H. Christopher Bartolomucci 


This chapter addresses Congress’ authority to enact S. 147, the proposed Native 
Hawaiian Government Reorganization Act of 2005 (“NHGRA”), which establishes a process for 
reconstituting and recognizing the Native Hawaiian governing entity. We conclude that Congress 
has the constitutional authority to enact the Native Hawaiian Government Reorganization Act of 
2005. 


Congress possesses plenary and exclusive power under the Constitution to enact special 
legislation to deal with Native Americans. This authority, inherent in the Constitution and 
explicit in the Indian Commerce Clause, art. I, § 8, cl. 3, and Treaty Clause, art. II, § 2, cl. 2, 
extends to dealings with Native Hawaiians, especially given the particular moral and legal 
obligations the United States assumed for its role in effecting a forcible end to the Kingdom of 
Hawaii in 1893. 

Rice v. Cayetano, 528 U.S. 495 (2000), is not to the contrary. The Supreme Court there 
expressly declined to address whether “native Hawaiians have a status like that of Indians in 
organized tribes” and “whether Congress may treat the native Hawaiians as it does the Indian 
tribes.” Id. at 518. The conclusion that granting Native Hawaiians special voting rights in 
connection with the election of a state governmental official violates the Equal Protection Clause 
does not speak to whether Congress has the authority to reaffirm the status of Native Hawaiians 
as an indigenous, self-governing people and reestablish a govemment-to-government 
relationship: 

The decisions of this Court leave no doubt that federal legislation with respect to Indian 
tribes, although relating to Indians as such, is not based upon impermissible racial 
classifications. Quite the contrary, classifications expressly singling out Indian tribes as 
subjects of legislation are expressly provided for in the Constitution and supported by the 
ensuing history of the Federal Government’s relations with Indians. 

United States v. Antelope , 430 U.S. 641, 645 (1977). 


I. The Native Hawaiian Government Reorganization Act 

The stated purpose of the NHGRA is “to provide a process for the reorganization of the 
Native Hawaiian governing entity and the reaffirmation of the political and legal relationship 
between the United States and the Native Hawaiian governing entity for purposes of continuing a 
government-to-government relationship.” NHGRA § 4(b). To that end, the NHGRA authorizes 
the Secretary of the Interior to establish a Commission that will prepare and maintain a roll of 
Native Hawaiians wishing to participate in the reorganization of the Native Hawaiian governing 


30 


entity. Id. § 7(b). For the purpose of establishing the roll, the NHGRA defines the term “Native 
Hawaiian'” as: 

(A) an individual who is one of the indigenous, native people of Hawaii and who is a 
direct lineal descendant of the aboriginal, indigenous, native people who (i) resided in the 
islands that now comprise the State of Hawaii on or before January 1, 1893; and (ii) 
occupied and exercised sovereignty in the Hawaiian archipelago, including the area that 
now constitutes the State of Hawaii; or (B) an individual who is one of the indigenous, 
native people of Hawaii and who was eligible in 1921 for the programs authorized by the 
Hawaiian Homes Commission Act (42 Stat. 108. chapter 42) or a direct lineal 
descendant of that individual. 

Id. § 3(8). 

Through the preparation and maintenance of the roll of Native Hawaiians, the 
Commission will set up a Native Hawaiian Interim Governing Council called for by the 
NHGRA. Id. § 7(c)(2). Native Hawaiians listed on the roll may develop criteria for candidates to 
be elected to serve on the Council; determine the Council’s structure; and elect members of the 
Council from enrolled Native Hawaiians. Id. § 7(c)(2)(A). 

The NHGRA provides that the Council may conduct a referendum among enrolled 
Native Hawaiians “for the purpose of determining the proposed elements of the organic 
governing documents of the Native Hawaiian governing entity.” Id. § 7(c)(2)(B)(iii)(I). 
Thereafter, the Council may hold elections for the purpose of ratifying the proposed organic 
governing documents and electing the officers of the Native Hawaiian governing entity. Id. § 
7(c)(2)(B)(iii)(IV). 


II. Congress’ Authority to Enact the NHGRA 

Congressional authority to enact S. 147 encompasses two subordinate questions: First, 
would Congress have the power to adopt such legislation for members of a Native American 
tribe in the contiguous 48 states? Second, does such power extend to Native Hawaiians? The 
answer to both questions is yes, especially given the moral and legal obligations the United 
States acquired for overthrowing the then-sovereign Kingdom of Hawaii in 1893. 

A. Congress’ Broad Power to Deal with Indians Includes the Power to Restore 

Sovereignty to, and Reorganize the Government of, Indian Tribes 

There is little question that Congress has the power to recognize Indian tribes. As the 
Supreme Court explained recently, “the Constitution grants Congress broad general powers to 
legislate in respect to Indian tribes, powers that we have consistently described as ‘plenary and 
exclusive.’ ” United States v. Lara , 541 U.S. 193, 200 (2004). See also South Dakota v. Yankton 
Sioux Tribe , 522 U.S. 329, 343 (1998) (“Congress possesses plenary power over Indian affairs”); 
Alaska v. Native Village ofVenetie Tribal Gov 7, 522 U.S. 520, 531 n.6 (1998) (same); 20 U.S.C. 
§4101(3) (finding that the Constitution “invests the Congress with plenary power over the field 


31 


o 


of Indian affairs”). The Nh RA expressly recites and invokes this constitutional authority. See 
NHGRA § 2(1) (‘The Constitution vests Congress with the authority to address the conditions of 
the indigenous native people of the United States.”); id. § 4(a)(3). 

This broad congressional power derives from a number of constitutional provisions, 
including the Indian Commerce Clause, art. I, § 8. cl. 3, which grants Congress the power to 
“regulate Commerce * * * with the Indian Tribes,” as well as the Treaty Clause, art. II, § 2, cl. 2. 
See Lara , 541 U.S. at 200-01; Morton v. Mancari, 417 U.S. 535, 552 (1974). Other sources of 
constitutional authority include the Debt Clause, art. I, § 8, cl. 1, see United States v. Sioux 
Nation of Indians, 448 U.S. 371, 397 (1980); see also Pope v. United States , 323 U.S. 1, 9 (1944) 
(“The power of Congress to provide for the payment of debts, conferred by § 8 of Article I of the 
Constitution, is not restricted to payment of those obligations which are legally binding on the 
Government. It extends to the creation of such obligations in recognition of claims which are 
merely moral or honorary.”); and the Property Clause, art. IV, § 3, cl. 2, see Alaska Pacific 
Fisheries v. United States, 248 U.S. 78, 87-88 (1918); see also Alabama v. Texas, 347 U.S. 272, 
273 (1954) (per curiam) (“The power of Congress to dispose of any kind of property belonging 
to the United States is vested in Congress without limitation.”) (internal quotation marks 
omitted). 9 

Congress’ legislative authority with respect to Indians also rests in part “upon the 
Constitution's adoption of preconstitutional powers necessarily inherent in any Federal 
Government, namely power that this Court has described as ‘necessary concomitants of 
nationality.’ ” Lara, 124 S. Ct. at 1634 (citing, inter alia. United States v. Curtiss-Wright Export 
Corp., 299 U.S. 304, 315-322 (1936)). See also Morton v. Mancari, 417 U.S. at 551-552 (“The 
plenary power of Congress to deal with the special problems of Indians is drawn both explicitly 
and implicitly from the Constitution itself.”) (emphasis added). 

Plenary congressional authority to recognize Indian tribes extends to the restoration and 
reorganization of tribal sovereignty. In Lara, the Court held that Congress' broad authority with 
respect to Indians includes the power to enact legislation designed to “relax restrictions” on 
“tribal sovereign authority.” 124 S. Ct. at 196, 202. “From the Nation’s beginning,” the Court 
said, “Congress’ need for such legislative power would have seemed obvious.” Id. at 202. The 
Court explained that “the Government's Indian policies, applicable to numerous tribes with 
diverse cultures, affecting billions of acres of land, of necessity would fluctuate dramatically as 
the needs of the Nation and those of the tribes changed over time,” and “[s]uch major policy 
changes inevitably involve major changes in the metes and bounds of tribal sovereignty.” Id. The 
Court noted that today congressional policy “seeks greater tribal autonomy within the framework 
of a ‘govemment-to-govemment' relationship with federal agencies.” Id. (quoting 59 Fed. Reg. 
22.951 (1994)). 

Of particular significance to the present analysis, the Court in Lara specifically 
recognized Congress' power to restore previously extinguished sovereign relations with Indian 


9 As discussed herein, see infra at 16-17, Congress in 1921 set aside some 200,000 acres of public land for the 
benefit of Native Hawaiians. The NHGRA is related to, and would help to realize the purpose of, that exercise of the 
Property Clause power by commencing a process that would result in the identification of the proper beneficiaries of 
Congress’ set aside. 


32 



tribes. The Court observed that “Congress has restored previously extinguished tribal status -- by 
re-recognizing a Tribe whose tribal existence it previously had terminated/’ Id. (citing Congress’ 
restoration of the Menominee tribe in 25 U.S.C. §§ 903-903f). And the Court cited the 1898 
annexation of Hawaii as an example of Congress’ pow er “to modify the degree of autonomy 
enjoyed by a dependent sovereign that is not a State.’’ Id. Thus, when it comes to the sovereignty 
of Indian tribes or other “domestic dependent nations,” Cherokee Nation v. Georgia , 30 U.S. 1, 

17 (1831), the Constitution does not “prohibit Congress from changing the relevant legal 
circumstances, i.e., from taking actions that modify or adjust the tribes’ status,” and it is not for 
the federal judiciary to “second-guess the political branches' own determinations” in that regard. 
Lara , 124 S. Ct. at 205. 

United States v. John. 437 U.S. 634 (1978), further supports congressional authority to 
recognize reconstituted tribal governments and to reestablish sovereign relations with them. 
There, Congress’ power to legislate with respect to the Choctaw Indians of Mississippi was 
challenged on grounds that “since 1830 the Choctaw residing in Mississippi have become fully 
assimilated into the political and social life of the State” and that ‘“the Federal Government long 
ago abandoned its supervisory authority over these Indians.” Id. at 652. It was thus urged that to 
“recognize the Choctaws in Mississippi as Indians over whom special federal power may be 
exercised would be anomalous and arbitrary.” Id. The Court unanimously rejected the 
argument. “[W]e do not agree that Congress and the Executive Branch have less power to deal 
with the affairs of the Mississippi Choctaw than with the affairs of other Indian groups.” Id. at 
652-653. The “fact that federal supervision over them has not been continuous,” according to 
the Court, does not “destroy[... ] the federal power to deal with them.” Id. at 653. 

Congress exercised this established authority to restore the government-to-govemment 
relationship with the Menominee Indian tribe of Wisconsin, see Lara , 541 U.S. at 203-204, and it 
can do the same here. Indeed, the NHGRA government reorganization process closely 
resembles that prescribed by the Menominee Restoration Act, 25 U.S.C. §§ 903-903T 

In 1954, Congress adopted the Menominee Indian Termination Act, 25 U.S.C. §§ 891 - 
902, which terminated the government-to-govemment relationship with the tribe, ended federal 
supervision over it, closed its membership roll, and provided that “the laws of the several States 
shall apply to the tribe and its members in the same manner as they apply to other citizens or 
persons within their jurisdiction.” Menominee Tribe of Indians v. United States. 391 U.S. 404, 
407-410 (1968). In 1973, Congress reversed course and adopted the Menominee Restoration 
Act, which repealed the Termination Act, restored the sovereign relationship with the tribe, 
reinstated the tribe’s rights and privileges under federal law, and reopened its membership roll. 

25 U.S.C. §§ 903a(b), 903b(c). 

The Menominee Restoration Act established a process for reconstituting the Menominee 
tribal leadership and organic documents under the direction of the Secretary of the Interior. The 
Restoration Act directed the Secretary to: (a) announce the date of a general council meeting of 
the tribe to nominate candidates for election to a newly-created, nine-member Menominee 
Restoration Committee; (b) hold an election to elect the members of the Committee; and (c) 
approve the Committee so elected if the Restoration Act's nomination and election requirements 
were met. Id. § 903b(a). Just so with S. 147. The NHGRA authorizes the Secretary of the 


33 


Interior to establish a Commission that will prepare and maintain a roll of Native Hawaiians 
wishing to participate in the reorganization of the Native Hawaiian governing entity. NHGRA § 
7(b). The NHGRA provides for the establishment of a Native Hawaiian Interim Governing 
Council. Id. § 7(c)(2). Native Hawaiians listed on the roll may develop criteria for candidates to 
be elected to serve on the Council; determine the Council’s structure; and elect members of the 
Council from enrolled Native Hawaiians. Id. § 7(c)(2)(A). 

The Menominee Restoration Act provided that, following the election of the Menominee 
Restoration Committee, and at the Committee's request, the Secretary was to conduct an election 
“for the purpose of determining the tribe’s constitution and bylaws.” Id. § 903c(a). After the 
adoption of such documents, the Committee was to hold an election “for the purpose of 
determining the individuals who will serve as tribal officials as provided in the tribal constitution 
and bylaws.” Id. § 903c(c). Likewise, the NHGRA provides that the Native Hawaiian Interim 
Governing Council may conduct a referendum among enrolled Native Hawaiians “for the 
purpose of determining the proposed elements of the organic governing documents of the Native 
Hawaiian governing entity.” Id. § 7(c)(2)(B)(iii)(I). Thereafter, the Council may hold elections 
for the purpose of ratifying the proposed organic governing documents and electing the officers 
of the Native Hawaiian governing entity. Id. § 7(c)(2)(B)(iii)(IV). 

The courts have approved the process set forth in the Menominee Restoration Act to 
restore sovereignty to the Menominee Indians. See Lara , 541 U.S. at 203 (citing the Restoration 
Act as an example where Congress “restored previously extinguished tribal rights”); United 
States v. Long , 324 F.3d 475, 483 (7th Cir.) (concluding that Congress had the power to 
“restorfe] to the Menominee the inherent sovereign power that it took from them in 1954”), cert, 
denied , 540 U.S. 822 (2003). The teachings of these cases would apply to validate the similar 
process set forth in NHGRA. 


B. Congress’ Power to Enact Special Legislation with Respect to Indians Extends to 

Native Hawaiians 

The inquiry, therefore, turns to whether Congress has the same authority to deal with 
Native Hawaiians as it does with other Native Americans in the contiguous 48 states. Congress 
has concluded that it has such authority. See NHGRA § 4(a)(3) (finding that Congress “possesses 
the authority under the Constitution, including but not limited to Article I, section 8, clause 3, to 
enact legislation to address the conditions of Native Hawaiians”); 42 U.S.C. § 11701(17) (“The 
authority of the Congress under the United States Constitution to legislate in matters affecting 
the aboriginal or indigenous peoples of the United States includes the authority to legislate in 
matters affecting the native peoples of Alaska and Hawaii.”). We conclude that courts will likely 
affirm these assertions of congressional authority. 10 

Under United States v. Sandoval 231 U.S. 28 (1913), Congress has the authority to 
recognize and deal with native groups pursuant to its Indian affairs power, and courts have only a 


10 Rice v. Cayetano did not decide the issue. On the contrary, the Supreme Court in Rice expressly declined to 
answer the questions whether “native Hawaiians have a status like that of Indians in organized tribes” and “whether 
Congress may treat the native Hawaiians as it does the Indian tribes.” 528 U.S. at 518. 


34 



very limited role in reviewing the exercise of such congressional authority. In Sandoval , the 
Supreme Court rejected the argument that Congress lacked authority to treat the Pueblos of New 
Mexico as Indians and that the Pueblos were “beyond the range of congressional power under 
the Constitution.” Id. at 49. 

The Court first observed that “[n]ot only does the Constitution expressly authorize 
Congress to regulate commerce with the Indian tribes, but long continued legislative and 
executive usage and an unbroken current of judicial decisions have attributed to the United States 
* * * the power and duty of exercising a fostering care and protection over all dependent Indian 
communities within its borders, whether within its original territory or territory subsequently 
acquired, and whether within or without the limits of a state.” Id. at 45-46. The Court went on 
to say that, although “it is not meant by this that Congress may bring a community or body of 
people within the range of this power by arbitrarily calling them an Indian tribe,” nevertheless, 
“the questions whether, to what extent, and for what time they shall be recognized and dealt with 
as dependent tribes requiring the guardianship and protection of the United States are to be 
determined by Congress, and not by the courts.” Id. at 46. Applying those principles, the 
Supreme Court concluded that Congress' “assertion of guardianship over [the Pueblos] cannot be 
said to be arbitrary, but must be regarded as both authorized and controlling.” Id. 
at 47. And the Court so held even though the Pueblos differed (in the Court's view) 
in some respects from other Indians: They were not “nomadic in their inclinations”; 
they were “disposed to peace”; they “liv[ed] in separate and isolated communities”; their lands 
were “held in communal, fee-simple ownership under grants from the King of Spain”; and they 
possibly had become citizens of the United States. Id. at 39. 

Sandoval thus holds, first, that Congress, in exercising its constitutional authority to deal 
with Indian tribes, may determine whether a “community or body of people” is amenable to that 
authority, and, second, that unless Congress acts “arbitrarily,” courts do not second-guess 
Congress' determination. 11 

It cannot be said that the NHGRA is an arbitrary exercise of Congress’ power to 
recognize and deal with this Nation’s native peoples. Congress has expressly found, in the 
NHGRA and other statutes, that Native Hawaiians are like other Native Americans. See NHGRA 
§ 2(2) (finding that Native Hawaiians “are indigenous, native people of the United States”); Id. § 
2(20)(B) (Congress “has identified Native Hawaiians as a distinct group of indigenous, native 
people of the United States within the scope of its authority under the Constitution, and has 
enacted scores of statutes on their behalf’); id. § 4(a)(1); Native American Languages Act, 25 
U.S.C. § 2902(1) (“The term 'Native American' means an Indian, Native Hawaiian, or Native 
American Pacific Islander”); American Indian Religious Freedom Act, 42 U.S.C. § 1996 
(declaring it to be the policy of the United States “to protect and preserve for American Indians 
their inherent right of freedom to believe, express, and exercise the traditional religions of the 


11 See also Lara, 541 U.S. at 205 (federal judiciary should not “second-guess the political branches’ own 
determinations” with respect to “the metes and bounds of tribal autonomy”); United States v. McGowan, 302 U.S. 
535, 538 (1938) (“Congress alone has the right to determine the manner in which this country’s guardianship over 
the Indians shall be carried out”); Long, 324 F.3d at 482 (“[W]hile we assume that Congress neither can nor would 
confer the status of a tribe onto a random group of people, we have no doubt about congressional power to recognize 
an ancient group of people for what they are.”); cf Alaska v. Native Village ofVenetie, 522 U.S. at 534 (“Whether 
the concept of Indian country should be modified is a question entirely for Congress.”). 


35 



American Indian, Eskimo, Aleut, and Native Hawaiians”); 42 U.S.C. § 11701(1) (finding that 
“Native Hawaiians comprise a distinct and unique indigenous people with a historical continuity 
to the original inhabitants of the Hawaiian archipelago whose society was organized as a Nation 
prior to the arrival of the first nonindigenous people in 1778”). 

Congress’ authority to treat Native Hawaiians as American Indians is supported by the 
numerous statutes Congress has enacted doing just that. See, e.g., Hawaiian Homes Commission 
Act, 42 Stat. 108 (1921); Native Hawaiian Education Act, 20 U.S.C. §§ 7511-7517; Hawaiian 
Homelands Homeownership Act, 25 U.S.C. §§ 4221-4243; Native Hawaiian Health Care Act, 42 
U.S.C. 11701(19) (noting Congress’ “enactment of federal laws which extend to the Hawaiian 
people the same rights and privileges accorded to American Indian, Alaska Native, Eskimo, and 
Aleut communities”); see also Statement of U.S. Representative Ed Case, Hearing Before the 
Senate Committee on Indian Affairs on S. 147, the Native Hawaiian Government Reorganization 
Act, at 2-3 (March 1, 2005) (“[Ojver 160 federal statutes have enacted programs to better the 
conditions of Native Hawaiians in areas such as Hawaiian homelands, health, education and 
economic development, all exercises of Congress’ plenary authority under our U.S. Constitution 
to address the conditions of indigenous peoples.”) (prepared text) (hereinafter, “Senate Indian 
Affairs Committee Hearing on S. 147”); cf. Apology Resolution, Pub. L. No. 103-150, 107 Stat. 
1510 (1993). No court has struck down any of these numerous legislative actions as 
unconstitutional. 

That Congress has power to enact special legislation for Native Hawaiians is made clear 
by congressional action dealing with Native Alaskans, who-- like Native Hawaiians -- differ 
from American Indian tribes anthropologically, historically, and culturally. In 1971, Congress 
adopted the Alaska Native Claims Settlement Act (“ANCSA”), 43 U.S.C. §§ 1601-1629h, which 
is predicated on the view that congressional power to deal with Native Alaskans is coterminous 
with its plenary authority relating to American Indian tribes. See 43 U.S.C. § 1601(a) (finding a 
need for settlement of all claims “by Natives and Native groups of Alaska”); id. § 1602(b) 
(defining “Native” as a U.S. citizen “who is a person of one-fourth degree of more Alaska Indian 
* * * Eskimo, or Aleut blood, or combination thereof.”); id. § 1604(a) (directing the Secretary of 
the Interior to prepare a roll of all Alaskan Natives). The Supreme Court has never questioned 
the authority of Congress to enact such legislation. See Alaska v. Native Village ofVenetie, 
supra; 

Morton v. Ruiz, 415 U.S. 199, 212 (1974) (quoting passage of Brief for Petitioner the 
Secretary of the Interior referring to “Indians in Alaska and Oklahoma”); see also Pence v. 
Kleppe, 529 F.2d 135, 138 n.5 (9th Cir. 1976) (when the term “Indians” appears in federal 
statutes, that word “as applied in Alaska, includes Aleuts and Eskimos”). If Congress has 
authority to enact special legislation dealing with Native Alaskans, it follows that Congress has 
the same authority with respect to Native Hawaiians. 

Finally, the history of the Hawaiian people confirms that the story of the Hawaiian 
people, although unique in some respects, is in other ways very similar to the story of all Native 
Americans. By the time Captain Cook, the first white traveler to Hawaii, “made landfall in 
Hawaii on his expedition in 1778, the Hawaiian people had developed, over the preceding 1,000 
years or so, a cultural and political structure of their own. They had well-established traditions 
and customs and practiced a polytheistic religion.” Rice, 528 U.S. at 500. Hawaiian society, the 


36 


Court noted, was one "with its own identity, its own cohesive forces, its own history.*' Id. As 
late as 1810. ‘'the islands were united as one kingdom under the leadership of an admired figure 
in Hawaiian history, Kamehameha I.” Id. at 501. King Kamehameha had united the islands and 
"reasserted suzerainty over all lands.” Id. 

The Nineteenth Century is “a story of increasing involvement of westerners in the 
economic and political affairs of the Kingdom.” Id. During this period, the United States 
established a govemment-to-government relationship with the Kingdom of Hawaii. Between 
1826 and 1887, the two nations executed a number of treaties and conventions. See id. at 504. 

In 1893, “a group of professionals and businessmen, with the active assistance of John 
Stevens, the United States Minister to Hawaii, acting with the United States Armed Forces, 
replaced the monarchy [of Queen Liliuokalani] w ith a provisional government.” Id. at 505. In 
1894, the U.S.-created provisional government then established the Republic of Hawaii. See id. 
In 1898. President McKinley signed the Newlands Resolution, which annexed Hawaii as a U.S. 
territory. See id.; Territory of Hawaii v. Mankichi, 190 U.S. 197, 209-211 (1903) (discussing the 
annexation of Hawaii); Lara, 541 U.S. at 203-204 (citing the annexation of Hawaii as an 
example of Congress' adjustment of the autonomous status of a dependent sovereign). 

Under the instrument of annexation, the so-called Newlands Resolution, the Republic of 
Hawaii ceded all public lands to the United States, and the revenue from such lands was to be 
“used solely for the benefit of the inhabitants of the Hawaiian Islands for educational and other 
public purposes.” Rice, 528 U.S. at 505. In 1921, concerned about the deteriorating conditions 
of the Native Hawaiian people. Congress passed the Haw aiian Homes Commission Act, “which 
set aside about 200,000 acres of the ceded public lands and created a program of loans and long¬ 
term leases for the benefit of native Hawaiians.” Id. at 507. 

In 1959, Hawaii became the 50th State of the United States. See id. In connection with 
its admission to the Union, Hawaii agreed to adopt the Hawaiian Homes Commission Act as part 
of the Hawaii Constitution, and the United States adopted legislation transferring title to some 
1.4 million acres of public lands in Hawaii to the new State, w hich lands and the revenues they 
generated were by \aw to be held ‘‘as a public trust” for, among other purposes, “the betterment 
of the conditions of Native Hawaiians.” Id. (quoting Admission Act, Pub. L. No. 86-3, § 5(f), 73 
Stat. 5, 6). 

In short, the story of the Native Hawaiian people is the story of an indigenous people 
having a distinct culture, religion, and government. Contact with the West brought decimation 
of the native population through foreign diseases; a period of government-to-government treaty 
making with the United States; the involvement of the U.S. Government in overthrowing the 
Native Hawaiian government; the establishment of the public trust relationship between the U.S. 
Government and Native Hawaiians; and, finally, political union with the United States. Given 
the parallels between the history of Native Hawaiians and other Native Americans, Congress has 
ample basis to conclude that it has the coterminous power to deal with the Native Hawaiian 
community as it has to deal with American Indian tribes. Cf. Long , 324 F.3d at 482 (“This case 


37 


does not involve a people unknown to history before Congress intervened. * * * [W]e have no 
doubt about congressional power to recognize an ancient group of people for what they are.”).'~ 

Finally, Congress has found that Native Hawaiians through the present day have 
maintained a link to the Native Hawaiians who exercised sovereign authority in the past; have 
never abandoned their claim to be a sovereign people; and have maintained a distinct cultural 
and social identity. See NHGRA § 2(13) (“[T]he Native Hawaiian people never directly 
relinquished to the United States their claims to their inherent sovereignty as people over their 
national lands, either through the Kingdom of Hawaii or through a plebiscite or referendum.”); 

Id. § 2(15) (“Native Hawaiians have continued to maintain their separate identity as a distinct 
native community through cultural, social, and political institutions”); Id. § 2(22)(A) (“Native 
Hawaiians have a cultural, historic, and land-based link to the aboriginal, indigenous, native 
people who exercised sovereignty over the Hawaiian Islands”); id. § 2(22)(B); see also U.S. 
Department of Justice & U.S. Department of the Interior, From Mauka to Makai: The River of 
Justice Must Flow Freely , Report on the Reconciliation Process Between the Federal 
Government and Native Hawaiians at 4 (Oct. 23, 2000) (finding that “the Native Hawaiian 
people continue to maintain a distinct community and certain governmental structures and they 
desire to increase their control over their own affairs and institutions”). 

In 1993, a century after the Kingdom of Hawaii was replaced with the active involvement 
of the U.S. Minister and the American military, “Congress passed a Joint Resolution recounting 
the events in some detail and offering an apology to the native Hawaiian people.” Rice, 528 U.S. 
at 505. See Apology Resolution, Pub. L. No. 103-150, 107 Stat. 1510 (1993). In the Apology 
Resolution, Congress both “acknowledge^] the historical significance of this event which 
resulted in the suppression of the inherent sovereignty of the Native Hawaiian people” and issued 
a formal apology to Native Hawaiians “for the overthrow of the Kingdom of Hawaii on January 
17, 1893 with the participation of agents and citizens of the United States, and the deprivation of 
the rights of Native Hawaiians to self-determination.” Id. §§ 1,3, 107 Stat. 1513. 


C. The Responsibility of the U.S. Government for Contributing to the Overthrow of 
the Hawaiian Kingdom Reinforces Congress’ Moral and Legal Authority to Enact 
the NHGRA 

Congress’ moral and legal authority to establish a process for the reorganization of the 
Native Hawaiian governing entity also derives from the role played by the United States — in 
particular the U.S. Minister to Hawaii, John Stevens, aided by American military forces -- in 
bringing a forcible end to the Kingdom of Hawaii in 1893. 


12 In Montoya v. United States, 180 U.S. 261, 266 (1901), the Supreme Court stated that “[b]y a "tribe’ we 
understand a body of Indians of the same or a similar race, united in a community under one leadership or 
government, and inhabiting a particular though sometimes ill-defined territory.” In so stating, the Court in 
Montoya did not intend to, and did not, circumscribe Congress’ authority to recognize Indian tribes. In any event, 
the community of Native Hawaiian people fit within the Montoya definition of a tribe: Native Hawaiians were, and 
are, of a “same or similar” race, had a unitary governmental system prior to is overthrow, and have inhabited the 
Hawaiian Islands. 


38 



As Congress recounted in the Apology Resolution, the U.S. Minister to the sovereign and 
independent Kingdom of Hawaii in January 1893 “conspired with a small group of non- 
Hawaiian residents of the Kingdom of Hawaii, including citizens of the United States, to 
overthrow the indigenous and lawful Government of Hawaii.” 107 Stat. 1510. In pursuit of that 
objective, U.S. Minister Stevens “and the naval representatives of the United States caused 
armed naval forces of the United States to invade the sovereign Hawaii nation on January 16, 
1893, and to position themselves near the Hawaiian Government buildings and the Iolani Palace 
to intimidate Queen Liliuokalani and her Government.” Id. See also S. Rep. No. 108-85, 108th 
Cong., 2d Sess. 11 (2003) (on the orders of the U.S. Minister, “American soldiers marched 
through Honolulu, to a building known as AH'iolani Hale, located near both the government 
building and the palace”); Rice , 528 U.S. at 504-505. The next day, the Queen issued a 
statement indicating that she would yield her authority “to the superior force of the United States 
of America whose Minister Plenipotentary, His Excellency John L. Stevens, has caused United 
States troops to be landed at Honolulu.” 107 Stat. 1511. The United States, quite simply, 
effected regime change in Hawaii because “without the active support and intervention by the 
United States diplomatic and military representatives, the insurrection against the Government of 
Queen Liliuokalani would have failed for lack of popular support and insufficient arms.” Id. In 
December 18, 1893, President Cleveland described the Queen's overthrow “as an ; act of war,’ 
committed with the participation of a diplomatic representative of the United States and without 
the authority of Congress.” Id. 

Given the role of United States agents in the overthrow of the Kingdom of Hawaii, 
Congress could conclude that its “unique obligation toward the Indians,” Morton v. Mancari, 417 
U.S. at 555, extends to Native Hawaiians. Congress’ power to enact special legislation dealing 
with native people of America is derived from the Constitution, “both explicitly and implicitly.” 
Id. at 551 (emphasis added). See Lara , 541 U.S. at 201 (to the extent that, through the late 19th 
Century, Indian affairs were a feature of American military and foreign policy, “Congress’ 
legislative authority would rest in part * * * upon the Constitution's adoption of preconstitutional 
powers necessarily inherent in any Federal Government'’). The Supreme Court has explained 
that the United States has a special obligation toward the Indians -- a native people who were 
overcome by force -- and that this obligation carries with it the authority to legislate with the 
welfare of Indians in mind. As the Court said in Board of County Commissioners of Creek 
County v. Seber , 318 U.S. 705 (1943): 

From almost the beginning the existence of federal power to regulate and protect the 
Indians and their property against interference even by a state has been recognized. This 
power is not expressly granted in so many words by the Constitution, except with respect 
to regulating commerce with the Indian tribes, but its existence cannot be doubted. In the 
exercise of the war and treaty powers, the United States overcame the Indians and took 
possession of their lands, sometimes by force, leaving them an uneducated, helpless and 
dependent people needing protection against the selfishness of others and their own 
improvidence. Of necessity the United States assumed the duty of furnishing that 

protection and with it the authority to do all that was required to perform that obligation * 
* * 


Id. at 715 (citation omitted). 


39 


In the case of Native Hawaiians, the maneuverings of the U.S. Minister and the 
expression of U.S. military force contributed to the overthrow of the Kingdom of Hawaii and the 
deposition of her Queen. The events of 1893 cannot be undone; but their import extends to this 
day, imbuing Congress with a special obligation and the inherent authority to restore some 
semblance of the self-determination then stripped from Native Hawaiians. In the words of Justice 
Jackson, 

The generation of Indians who suffered the privations, indignities, and brutalities of the 
westward march of the whites have gone to the Happy Hunting Ground, and nothing that 
we can do can square the account with them. Whatever survives is a moral obligation 
resting on the descendants of the whites to do for the descendants of the Indians what in 
the conditions of this twentieth century is the decent thing. 

Northwestern Bands of Shoshone Indians v. United States , 324 U.S. 335, 355 (1945) (concurring 
opinion). 


IV. As an Exercise of Congress’ Indian Affairs Powers, the NHGRA Is Not an 
Impermissible Classification Violative of Equal Protection 

The principal objection to the NHGRA -- that it classifies U.S. citizens on the basis of 
race, in violation of the constitutional guarantee of equal protection, cf Rice v. Cay>etano , 
supra , misses the mark. Because the NHGRA is an exercise of Congress' Indian affairs 
powers, this legislation is “political rather than racial in nature.” Morton v. Mancari, 417 U.S. at 
553 n.24. As the Court explained. 

The decisions of this Court leave no doubt that federal legislation with respect to Indian 
tribes, although relating to Indians as such, is not based upon impermissible racial 
classifications. Quite the contrary, classifications expressly singling out Indian tribes as 
subjects of legislation are expressly provided for in the Constitution and supported by the 
ensuing history of the Federal Government’s relations with Indians. * * * Federal 
regulation of Indian tribes * * * is governance of once-sovereign political communities; 
it is not to be viewed as legislation of a “ ‘racial' group consisting of Indians 
Morton v. Mancari, supra, at 553 n.24. 

United States v. Antelope, 430 U.S. at 645-646 (footnote omitted); see also Washington v. 
Confederated Bands & Tribes of the Yakima Indian Nation, 439 U.S. 463, 500-501 (1979) (“It is 
settled that ‘the unique legal status of Indian tribes under federal law' permits the Federal 
Government to enact legislation singling out tribal Indians, legislation that might otherwise be 
constitutionally offensive.”) (quoting Morton v. Mancari , 417 U.S. at 551-552). 


13 Rice does not support this objection. There, the Court held that the Fifteenth Amendment to the Constitution -- 
which states that the right of U.S. citizens to vote shall not be denied or abridged by the United States or by any state 
on account of race or color -- did not allow the State of Hawaii to limit to Native Hawaiians eligibility to vote in 
elections to elect trustees for the Office of Hawaiian Affairs, a state governmental agency. See Rice, 528 U.S. at 
523-524. Rice is inapposite because the reorganized Native Hawaiian governing entity will be neither a United 
States nor a Hawaiian governmental entity, but rather the governing entity of a sovereign native people. 


40 



In Morton v. Mancari, the Supreme Court rejected the claim that an Act of Congress 
according an employment preference for qualified Indians in the Bureau of Indian Affairs 
violated the Due Process Clause and federal antidiscrimination provisions. In rejecting that 
claim, the Court explained that “[o]n numerous occasions this Court specifically has upheld 
legislation that singles out Indians for particular and special treatment,” 417 U.S. at 554 (citing 
cases involving, inter alia , the grant of tax immunity and tribal court jurisdiction), and the Court 
laid down the following rule with respect to Congress’ special treatment of Indians: “As long as 
the special treatment can be tied rationally to the fulfillment of Congress’ unique obligation 
toward the Indians, such legislative judgments will not be disturbed.” Id. Clearly, the NHGRA 
can be “rationally tied” to Congress’ discharge of its duty with respect to the native people of 
Hawaii. 

In any event. Native Hawaiians have been denied some of the self-governance authority 
long established for other indigenous populations in the United States. As Governor Lingle 
testified to Congress, 

The United States is inhabited by three indigenous peoples — American Indians, 
Native Alaskans and Native Hawaiians. * * * Congress has given two of these 
three populations full self-governance rights. * * * To withhold recognition of the 
Native Hawaiian people therefore amounts to discrimination since it would 
continue to treat the nation’s three groups of indigenous people differently. * * * 
[Tjoday there is no one governmental entity able to speak for or represent Native 
Hawaiians. The [NHGRA] would finally allow the process to begin that would 
bring equal treatment to the Native Hawaiian people. 

Testimony of Linda Lingle, Governor of the State of Hawaii, Senate Indian Affairs 
Committee Hearing on S. 147, at 2 (March 1, 2005) (prepared text). See also Statement of Sen. 
Byron Dorgan, Vice Chairman, Senate Indian Affairs Committee Hearing on S. 147, at 1 (March 
1, 2005) (“[Tjhrough this bill, the Native Hawaiian 

people simply seek a status under Federal law that is equal to that of America’s 
other Native peoples -- American Indians and Alaska Natives.”) (prepared text); Haunani 
Apoliona, Chairperson, Board of Trustees, Office of Hawaiian Affairs, Senate Indian Affairs 
Committee Hearing on S. 147, at 2 (March 1, 2005) (“In this legislation, as Hawaiians, we seek 
only what long ago was granted this nation's other indigenous peoples.”) (prepared text). 

* * * 


The Supreme Court has confirmed that Congress has broad, plenary constitutional 
authority to recognize indigenous governments and to help restore and restructure indigenous 
governments overtly terminated or effectively decimated in earlier eras. See Lara, 541 U.S. at 
203 (affirming that the Constitution authorizes Congress “to enact legislation * * * recognizing] 
* * * the existence of individual tribes” and “restoring] previously extinguished tribal status”). 
That authority extends to the Native Hawaiian people and permits Congress to adopt the 
NHGRA. which would recognize the Native Hawaiian governing entity and initiate a process for 
its restoration. 


41 


Dissenting Statement of Commissioner Michael J. Yaki 
Commissioner Arlan D. Melendez joins in this dissent. 


Preface 

As a person quite possibly with native Hawaiian blood running through his veins, 14 it is 
quite possible to say that I cannot possibly be impartial when it comes to this issue. And, in 
truth, that may indeed be the fact. Nevertheless, even before my substantive objections are made 
known, from a process angle there were serious and substantial flaws in the methodology 
underlying the report. 

First, the report relies upon a briefing from a grand total of four individuals, on an issue 
that has previously relied upon months of research and fact gathering that has led to two State 
Advisory Commission reports, one Department of Justice Report, and Congressional action (the 
“Apology Resolution”), not to mention testimony before the Congress on the NHGRA bill itself 
that was never incorporated into the record. 

The paucity of evidence adduced is hardly the stuff upon which to make 
recommendations or findings. Even though the Commission, to its credit, stripped the report of 
all its findings for its final version, does that not itself lend strength and credence to the 
suggestion that the briefing was flawed from the inception? And if so flawed, how can the 
Commission opine so strongly upon a record that it could not even find supported now non¬ 
existent findings? 

Second, aside from ignoring the volumes of research and testimony that lie elsewhere and 
easily available to the Commission, we ignored soliciting advice and comment from our own 
State Advisory Commission of Hawai'i. Over the past two decades, the Hawai’i Advisory 
Committee to the United States Commission on Civil Rights (“HISAC”) has examined issues 
relating to federal and state relations with Native Hawaiians. As early as 1991, HISAC 
recommended legislation confirming federal recognition of Native Hawaiians. A mere five years 
ago, the HISAC found that “the lack of federal recognition for native Hawaiians appears to 
constitute a clear case of discrimination among the native peoples found within the borders of 
this nation.” 13 The HISAC concluded “[ajbsent explicit recognition of a Native Hawaiian 
governing entity, or at least a process for ultimate recognition thereof, it is clear that the civil and 
political rights of Native Hawaiians will continue to erode.” 16 The HISAC found that “the denial 
of Native Hawaiian self-determination and self-governance to be a serious erosion of this 
group's equal protection and human rights.” 17 Echoing recommendations by the United States 


14 My grandfather was bom in Hana, Maui, and placed in an orphanage. The story passed down was that he was the 
product of a Japanese laborer on the islands and a Native Hawaiian. The orphanage records burned down some time 
ago, so we are unable to verify for sure whether he was half-native Hawaiian or not, but for anyone who knew or 
saw my grandfather, he had many Polynesian physical characteristics. 

15 Hawaii Advisory Committee to the U.S. Commission on Civil Rights, Reconciliation at a Crossroads: The 
Implications of the Apology Resolution and Rice v. Cayetano for Federal and State Programs Benefiting Native 
Hawaiians , at ix (June 2001). 

16 Id. at 49. 

17 Id. 


42 



Departments of Justice and Interior, the HISAC “strongly recommended]” that the federal 
government “accelerate efforts to formalize the political relationship between Native Hawaiians 
and the United States." 18 The HISACs long-standing position of support for legislation like S. 
147 to protect the civil rights of native Hawaiians belies recent assertions that such legislation 
discriminates on the basis of race and causes further racial divide. 

The HISAC could and would have been a key source of information, especially updated 
information, on the state of the record. To exclude them from the dialogue I believe was 
indefensible and a deliberate attempt to ensure that contrary views were not introduced into the 
record. 


Third, the report as it stands now makes no sense. The lack of findings, the lack of any 
factual analysis, now makes the report the proverbial Emperor without clothes. The conclusion 
of the Commission stands without support, without backing, and will be looked upon, I believe, 
as irrelevant to the debate. Such is the risk one runs when scholarship and balance are lacking. 

Substantively, the recommendation of the Commission cannot stand either. 

It is not based on facts about the political status of indigenous. Native Hawaiians; nor Native 
Hawaiian history and governance; or facts about existing U.S. policy and law concerning Native 
Hawaiians. It is a misguided attempt to start a new and destructive precedent in U.S. policy 
toward Native Americans. The USCCR recommendation disregards the U.S. Constitution that 
specifically addresses the political relationship between the U.S. and the nations of Native 
Americans. The USCCR disregarded facts when the choice was made not to include HISAC in 
the January 2006 briefing on NHGRA and not utilizing the past relevant HISAC reports 
concerning Native Hawaiians based on significant public hearing and facts. Spring-boarding 
from trick phrasing and spins offered by ill informed experts, at least one of whom has filed suit 
to end Native Hawaiian programs established through Congress and the state constitution, the 
USCCR majority recommendation is an obvious attempt to treat Native Hawaiians unfairly in 
order to begin the process of destroying existing U.S. policy towards Native Americans. 


Facts About Indigenous Native Hawaiians, Native Hawaiian and U.S. History, and the 
Distinct Native Hawaiian Indigenous Political Community Today 

Native Hawaiians are the indigenous people of Hawai'i, just as American Indians and 
Alaska Natives are the indigenous peoples of the remaining 49 states. Hawai'i is the homeland 
of Native Hawaiians. Over 1,200 years prior to the arrival of European explorer James Cook on 
the Hawaiian islands. Native Hawaiians determined their own form of governance, culture, way 
of life, priorities and economic system in order to cherish and protect their homelands, of which 
they are physically and spiritually a part. They did so continuously until the illegal overthrow of 
their government by agents and citizens of the U.S. government in 1893. In fact the U.S. 
engaged in several treaties and conventions with the Native Hawaiian government, including 
1826, 1842, 1849, 1875 and 1887. Though deprived of their inherent rights to self-determination 
as a direct result of the illegal overthrow, coupled with subsequent efforts to terminate Native 
Hawaiian language, leaders, institutions and government functions, Native Hawaiians persevered 


18 Id. 


43 



as best they could to perpetuate the distinct vestiges of their culture, institutions, homelands and 
government functions in order to maintain a distinct community, recognizable to each other. 

Today, those living in Hawai'i recognize these aspects of the distinct, functioning Native 
Hawaiian political community easily. For example: the Royal Benevolent Societies established 
by Ali’i (Native Hawaiian chiefs and monarchs) continue to maintain certain Native Hawaiian 
government assigned and cultural functions; the private Ali'i Trusts, such as Kamehameha 
Schools, Queen Lili’uokalani Trust, Queen Emma Foundation and Lunalilo Home, joined by 
state government entities established for indigenous Hawaiians, including the Office of Hawaiian 
Affairs and the Department of Hawaiian Homelands, and Native Hawaiian Serving institutions 
such as Alu Like, Inc. and Queen Lili’uokalani Children’s Center continue the Native Hawaiian 
government functions of caring for Native Hawaiian health, orphans and families, education, 
elders, housing economic development, governance, community wide communication and 
culture and arts; the resurgence of teaching and perpetuation of Native Hawaiian language and 
other cultural traditions; Native Hawaiian civic participation in matters important to the Native 
Hawaiian community are conducted extensively through Native Hawaiian organizations 
including the Association of Hawaiian Civic Clubs, the State Council of Hawaiian Homestead 
Associations, the Council for Native Hawaiian Advancement, Ka Lahui and various small groups 
pursuing independence; and Native Hawaiian family reunions where extended family members, 
young and old, gather to talk, eat, pass on family stories and history, sometimes sing and play 
Hawaiian music and dance hula and pass on genealogy. 

Indeed, if the briefing had been as consultative with the HISAC as it could have been, 
there would have been testimony that, for example, the Royal Order of Kamehameha, the Hale O 
Na AliT o Hawai’I, and the Daughters of Ka'ahumanu continue to operate under principles 
consistent with the law of the former Kingdom of Hawai’i. There would have been testimony 
that these groups went “underground” due to persecution but remained very much alive during 
that time. 1 

The distinct indigenous, political community of Native Hawaiians is recognized by 
Congress in over 150 pieces of legislation, including the Hawaiian Homes Commission Act and 
the conditions of statehood. Native Hawaiians are recognized as a distinct indigenous, political 
community by voters of Hawai’i, as expressed in the Hawai’i state constitution. 

The notion introduced by opponents to the NHGRA that the Native Hawaiians don’t “fit” 
federal regulations governing recognition of Native American tribes because they lacked a 
distinct political identity or continuous functional and separate government 21 ’ would ignore all 
the manifestations of such identity, existence, and recognition noted above. 


19 Communication from Quentin Kawananakoa, former member of the Hawai’i State Advisory Committee, May 12, 
2006. 

20 See 25 C.F.R. §83. 


44 



The NHGRA Does Not Set New Precedent in U.S. 


The NHGRA is in fact a measure to establish fairness in U.S. policy towards the three 
groups of Native Americans of the 50 united states—American Indians, Alaska Natives and 
Native Hawaiians. The U.S. already provides American Indians and Alaska Natives access to a 
process of federal recognition, and the NHGRA does the same for Native Hawaiians based on 
the same constitutional and statutory standing. 

I. Legal Authorities Establishing OHA/Purpose of OHA 

Hawai'i became the fiftieth state in the union in 1959 pursuant to Pub. L. No. 86-3, 73 
Stat. 5 (‘‘Admission Act”). Under this federal law, the United States granted the nascent state 
title to all public lands within the state, except for some lands reserved for use by the federal 
Government (“public lands trust”). These lands “together with the proceeds from the sale or 
other disposition of any such lands and the income therefrom, shall be held by [the State] as a 
public trust for the support of the public schools,... the conditions of native Hawaiians” and 
other purposes. 21 

In 1978, the multicultural residents of Hawai'i voted to amend its state Constitution to 1) 
establish the Office of Hawaiian Affairs (“OHA”) to “provide Hawaiians the right to determine 
the priorities which will effectuate the betterment of their condition and welfare and promote the 
protection and preservation of the Hawaiian race, and ... [to] unite Hawaiians as a people;” 22 
and 2) to establish the public lands trust created by the Admission Act as a constitutional 

23 

obligation of the State of Hawaii to the native people." 

The constitutional mandate for OHA was implemented in 1979 via the enactment of 
Chapter 10, Hawaii Revised Statutes. OHA's statutory purposes include “[assessing the policies 
and practices of other agencies impacting on native Hawaiians and Hawaiians,’" conducting 
advocacy efforts for native Hawaiians and Hawaiians,” “[a]pplying for, receiving, and 
disbursing, grants and donations from all sources for native Hawaiian and Hawaiian programs 
and services,” and “[s]erving as a vehicle for reparations.” 24 OHA administers funds derived for 
the most part from its statutory 20-percent share of revenues generated by the use of the public 
lands trust. 25 

Several legal challenges to the existence of OHA based upon the Fourteenth Amendment 
to the United States Constitution have been filed by various plaintiffs, some of who are 
represented by Mr. Burgess. Mr. Burgess has thus far failed to win the relief he has sought, 
including injunctive relief, either in the United States District Court for the District of Hawaii or 
the United States Court of Appeals for the Ninth Circuit. The denial of injunctive relief to Mr. 


21 §5(f),73 Stat. 6. 

22 1 Proceedings of the Constitutional Convention of Hawai’i 1978, Committee of the Whole Rep. 13, p. 1018 
(1980) 

23 William Burgess, who testified at the briefing, was a delegate to the 1978 Constitutional Convention, yet Mr. 
Burgess then voiced no opposition to the establishment of OHA. Communication of Martha Ross, Office of 
Hawaiian Affairs, May 2006. 

24 HRS § 10-3 (4)-(6). 

25 HRS § 10-13.5. 


45 



Burgess’s clients presents a powerful rebuttal to their claims that OHA's administration of its 
constitutional and statutory obligations to native Hawaiians and Hawaiians deprives all Hawaii's 
citizens of equal protection of law. 

Mr. Burgess describes the “driving force” behind the NHGRA as “discrimination based 
upon ancestry.” Nothing could be further from the truth or more illogical. The “driving force” 
behind the creation and passage of NHGRA is the desire of the Hawaiian people, and virtually 
every political representative in the State of Hawaii to achieve federal recognition and legal 
parity with federal recognition as with the other two native indigenous peoples of America, 
namely American Indian Nations and Native Alaskans. There is no constitutional impediment to 
congressional federal recognition of the Hawaiian people. 26 

Then-United States Solicitor John Roberts (now Chief Justice Roberts) argued in his prior 
legal briefs to the United States Supreme Court in Rice v. Cayetano: “[T]he Constitution, in 
short, gives Congress room to deal with the particular problems posed by the indigenous people 
of Hawaii and, at least when legislation is in furtherance of the obligation Congress has assumed 
to those people, that legislation is no more racial in nature than legislation attempting to honor 
the federal trust responsibility to any other indigenous people.” It is, in sum, “not racial at all.” 

Roberts went on to say: 

Congress is constitutionally empowered to deal with Hawaiians, has recognized such a 
"special relationship," and—”[i]n recognition of th[at] special relationship"—has extended 
to Native Hawaiians the same rights and privileges accorded to American Indian, Alaska 
Native, Eskimo, and Aleut communities." 20 U.S.C. § 7902(13) (emphasis added). As 
such, Congress has established with Hawaiians the same type of "unique legal 
relationship" that exists with respect to the Indian tribes who enjoy the "same rights and 
privileges" accorded Hawaiians under these laws. 42 U.S.C. § 11701(19). That unique 
legal or political status—not recognition of "tribal" status, under the latest executive 
transmutation of what that means—is the touchstone for application of Mancari when, as 
here. Congress is constitutionally empowered to treat an indigenous group as such. 


NHGRA Is a Matter of Indigenous Political Status and Relationship Betw een the U.S. and 
the Native Hawaiian Government, and Not a Racial Matter. 

Under the U.S. Constitution and federal law, America’s indigenous, native people are 
recognized as groups that are not defined by race or ethnicity, but by the fact that their 
indigenous, native ancestors exercised sovereignty over the lands and areas that subsequently 
became part of the United States. It is the pre-existing sovereignty—sovereignty that pre-existed 
the formation of the United States—which the U.S. Constitution recognizes and, on that basis, 
accords a special status to America's indigenous, native people. 

The tortured attempts by persons such as Mr. Burgess to distinguish Native Hawaiians 
from Native Americans ultimately fail by simple historical comparison. Like the Native 


26 See U.S. v. Lara. 541 U.S. 193 (2004). 


46 



Americans, the Native Hawaiians pre-dated the establishment of the United States. Like the 
Native Americans, the Native Hawaiians had their own culture, form of government, and distinct 
sense of identity. Like Native Americans, the United States stripped them of the ownership of 
their land and trampled over their sovereignty. The only distinction - one without a difference — 
is that unlike the vast majority of Native American tribes, the Native Hawaiians were not shipped 
off. force-marched, and relocated to another area far from their original homelands. 2 

It is somewhat disingenuous that the opponents of NHGRA are suggesting that extending 
this same U.S. policy to Native Hawaiians, the indigenous, native people of the fiftieth state 
would lead to racial balkanization. There are over 560 federally recognized American Indian 
and Alaska Native governing entities in 49 of 50 states, coexisting w ith all peoples and federal, 
state and local governments. There is absolutely NO evidence to support this notion, and seems 
to be spread simply to instill unw arranted fear and opposition to the NHGRA. 


NHGRA is Constitutional 

In United States v. Lara . the Supreme Court held that “[t]he Constitution grants Congress 
broad general powers to legislate in respect to Indian tribes powers that we have consistently 
described as plenary’ and exclusive." In 1954, Congress terminated the sovereignty of the 
Menominee Indian Tribe in Wisconsin. In 1973, Congress exercised its discretion, changed its 
mind, and enacted the Menominee Restoration Act, which restored sovereignty to the 
Menominee Tribe. 

NHGRA does little more than follow the precedent allowed by Lara and exercised in the 
Menominee case. Reliance on federal regulations as gospel ignores the fact that the plenary 
authority' of Congress has resulted in restoration of tribal status, in the case of the Menominee, 
and the retroactive restoration of tribal lands, as in the case of the Lytton Band in California. 

The Attorney General of Haw aii, many distinguished professors, and the American Bar 
Association all firmly believe that Congress has the authority' to recognize Native Hawaiians. 28 

All that NHGRA seeks is parity in U.S. policies towards the three indigenous, native 
people in the 50 states, American Indians, Alaska Natives and Native Hawaiians. Under the U.S. 
Constitution and Federal law', America's indigenous, native people are recognized as groups that 


27 Although, like Native Americans, the land ceded to them under the Hawaiian Homes Act is, for the most part, 
largely uninhabitable or not readily susceptible to development. 

28 On February 13, 2006, the policy-making body of the 400,000 members American Bar Association (ABA) “... 
voted overwhelmingly in favor of a resolution to urge Congress to pass legislation to establish a process to provide 
federal recognition for a Native Hawaiian governing entity. Such legislation, S. 147, proposed by Sen. Daniel 
Akaka, is currently pending in Congress.” As further explained by Alan Van Etten, Hawai’i state delegate, ABA, in 
a Letter to the Editor published on February' 21, 2006 in the Honolulu Advertiser, “ ...The ABA’s mission is to be 
the national representative of the legal profession, serving the public and the profession by promoting justice, 
professional excellence and respect for the law. By passing the resolution, the delegates said yes to the 
establishment by Congress of a process that would provide Native Hawaiians the same status afforded to America's 
other indigenous groups, American Indians and Native Alaskans. The blessing by this country 's largest and most 
prestigious legal organization would appear to put to rest the primary legal arguments advanced by this bill's 
opponents. ... The American Bar Association's support for Hawai’i's indigenous people sends a strong message 
that a process for Native Hawaiian recognition follows the rule of law and provides great impetus for Congress to 
take immediate action to pass the Akaka bill.” 


47 



are not defined by race or ethnicity, but by the fact that their indigenous, native ancestors, 
exercised sovereignty over the lands and areas that subsequently became part of the United 
States. It is the pre-existing sovereignty, sovereignty that pre-existed the formation of the United 
States which the U.S. Constitution recognizes and on that basis, accords a special status to 
America’s indigenous, native people. 

If one accepts the Commission's pronouncement against subdividing the country into 
“discrete subgroups accorded varying degrees of privilege,” then the Commission should 
immediately call for an end to any recognition of additional Indian tribes. Since that would 
clearly contravene the Constitutional authority of Congress, that would seem to be an unlikely— 
and illegal—outcome. Given that the authority for NHGRA stems from the same constitutional 
source as that for Native Americans, then the Commission majority has chosen to ignore the 
constitutionality of the proposed law. 


NHGRA Has the Support of the Residents of Hawai’i as Reflected in Two Scientific Polls, 
the Fact that the Majority of Officials Elected by the Voters of Hawai’i Support NHGRA. 

The results of a scientific poll in Hawai'i showed 68 percent of those surveyed support 
the bill. 29 The statewide poll was taken Aug. 15-18 by Ward Research, a local public opinion 
firm. 30 The results are consistent with a 2003 poll. 31 While polls alone do not a mandate make, 
the consistency between the two polls shows that despite the best efforts of opponents such as 
Mr. Burgess, the multicultural, multiethnic residents of Hawaii support the recognition of Native 
Hawaiians and would allow them to take the first, tentative, steps toward recognition and 
sovereignty. 

More importantly, the elected officials of Hawaii have almost unanimously thrown their 
support to the NHGRA. The NHGRA is supported by most of the elected officials of Hawai’i, 
including the entire Hawai’i Congressional Delegation, Governor Linda Lingle, the Senate and 
House of the State Legislature (except two members), all nine Trustees of the Office of Hawaiian 
Affairs and the mayors of all four counties of Hawai’i. 


Conclusion 

The NHGRA is about justice. It is about righting a wrong. It is about recognition of the 
identity and sovereignty of a people who survived attempts by our government to strip them of 
these precious rights over a hundred years ago. Far from the racial balkanization spread by its 


29 OH A Poll Shows Strong Community Support for Akaka Bill , HONOLULU STAR BULLETIN, August 23, 2005. 

30 OHA paid for the poll of 401 randomly selected Hawai’i residents, which had a margin of error of plus or minus 
4.9 percentage points. 

31 OHA Poll Finds Public Favors Federal Recognition , HONOLULU ADVERTISER, October 24, 2003. Ward 
Research was hired in July of 2003 to conduct the telephone survey, in which 600 residents were contacted, about 
half of them Native Hawaiians. Federal recognition won support from 86 percent of the Hawaiian survey bloc, and 
78 percent of the non-Hawaiian participants. However, the idea of creating a Hawaiian government drew 72 percent 
support from Hawaiian participants and 53 percent from non-Hawaiians. 


48 



opponents, NHGRA is simply a step - a baby step at that - towards potential limited sovereignty 
and self-governance. 

Most who live in Hawai'i know the distinct Native Hawaiian community, with its own 
language and culture, is the heart and breath of Hawai'i. Hawai'i, and no other place on earth, is 
the homeland of Native Hawaiians. 

On one thing the proponents and opponents of NHGRA seem to agree: Hawai'i is a 
special place in these United States, a multicultural society and model for racial and ethnic 
harmony that is unlike anywhere else in our country and, increasingly, the world. It is also a 
place where its multicultural residents recognize the indigenous Native Hawaiian culture as the 
host culture with a special indigenous political status where there are state holidays 
acknowledging Native Hawaiian monarchs, and the Hawaiian language is officially recognized. 

Perhaps it is the “mainlanders” lack of context and experience that creates a debate 
where, in Hawai'i, there is practically none. In the mainland, we think of “Aloha” as Hawaii 
Five-O, surfing, and brightly colored shirts that remain tucked away in the back of our closets. 

In Hawai'i, however, Aloha and the Aloha spirit is more than just a slogan. It is proof positive of 
the influence and power of the Native Hawaiian people and culture that exists and thrives today. 
In my lifetime, I have seen growing awareness, acceptance and usage of Hawaiian culture, 
symbols, and language. It is now almost mandatory to use pronunciation symbols whenever 
Hawaiian words are printed, whereas twenty years ago it was ignored. Multiculturalism in 
modem Hawai’i means that non-Native Hawaiians respect and honor the traditions of a people 
who settle on these volcanic paradises after braving thousands of miles of open ocean. The least 
we can do, the “we” being the American government which took away their islands, is to accord 
them the basic respect, recognition, and privileges we do all indigenous peoples of our nation. 
NHGRA will give meaning to the Apology Resolution; it will begin the healing of wounds. 

That same aloha spirit that imbues the multicultural islands of Hawai’i will, in my 
opinion, ensure that the processes contained in NHGRA will inure to the benefit of all the people 
of Hawaii. Perhaps more than any other place in our Union, fears of racial polarization, 
discrimination, or unequal treatment resulting from the passage of NHGRA should be seen as 
distant as the stars which the Hawaiians used to navigate their \va 'a, their canoes, across the 
vastness of the seas. 


49 


Dissenting Statement of Commissioner Arlan D. Melendez 
Commissioner Michael J. Yaki joins in this dissent. 


In 1893, shortly after becoming President, Grover Cleveland appointed a special envoy to 
Hawai'i, James Blount, to investigate the circumstances of the overthrow of the indigenous 
Hawaiian government and the standing of the Provisional Government. Blount delivered a 
report to President Cleveland later that year finding that representatives of the United States had 
abused their authority and their participation in the overthrow was responsible for its success. 

On the basis of this report, President Cleveland declared that a "substantial wrong has 
thus been done which a due regard for our national character as well as the rights of the injured 
people requires we should endeavor to repair," and called for the restoration of the Hawaiian 
monarchy. The Senate Foreign Relations Committee, at the behest of the Provisional 
Government, also investigated the role of the U.S. in the overthrow. The Committee held a 
series of hearings in which representatives of the Provisional Government were given unfettered 
access to the process in order to justify and obscure their role and that of the U.S., in what 
President Cleveland referred to as “an act of war...” against the sovereign Hawaiian nation. The 
Committee Chair issued his opinion exonerating the U.S. of wrongdoing (now known as the 
Morgan report), blaming the overthrow on the Native Hawaiian monarch. No other committee 
members signed the Chair’s opinion and four members of the committee vigorously dissented, 
finding that the diplomatic and military might of the U.S. was misused to overthrow the 
government of the Hawaiian people. 

The Apology Resolution approved by Congress in 1993 (attached) officially adopts the 
accurate account of the overthrow of Hawaii presented in the Blount report and repudiates the 
Morgan Report. Once again the United States government has acknowledged that an injustice 
has been committed that “our national character... requires we should endeavor to repair” and is 
considering legislation that would set in motion the process of repairing the illegal actions 
committed by the United States over 100 years ago. Yet, the Commission recommends that 
Congress should not pass this legislation. Because I believe that with today’s action the 
Commission has become a 21 sl century Morgan Report, I respectfully dissent. 

Discussion 

I fear that the Commission has lost sight of the bigger picture in making its 
recommendation. There is much more at stake in this debate than the passage of a particular bill 
or how Congress remedies the injustice perpetrated against the Native Hawaiian government. 
The crux of the issue before us, as I see it, is whether the United States government has a moral 
obligation and the requisite legal authority, to rectify a wrong it has committed. It is 
inconceivable to me to suggest that the United States government lacks the legal authority to 
choose to right a wrong that it admits responsibility for, but this seems to be what some of the 
opponents of this legislation suggest. Justice and fundamental fairness dictate that the federal 
government must have this power. To argue otherwise is a perversion of the principles and 
values that underpin our democracy that I simply cannot abide. 


50 


Moreover. I believe there is a moral imperative for the federal government to attempt to 
make amends for the injustices it has committed. I disagree with the sentiment suggested by 
several of my colleagues that even if Congress has the power to re-recognize the Native 
Hawaiian government, to do so would be ill-advised. To echo President Cleveland. I believe our 
national character requires that we endeavor to repair the wrong we have committed. 

The Apology Resolution passed by Congress in 1993 acknowledges that an injustice was 
perpetrated against the Native Hawaiian government by the United States, and there is real value 
in the fact of this acknowledgement. An apology implies, however, that there is also a 
concomitant will to address the ramifications of that injustice. There is a lot of unfinished 
business that must be attended to before true reconciliation between the United States and the 
Native Hawaiians can be achieved. For the Apology Resolution to be more than hollow words on 
paper. Congress must take the next step forward in this reconciliation process. I commend the 
sponsors and supporters of S. 147 for their efforts to do the right thing. 

Turning to the specific remedy Congress has chosen—establishing a process for the 
reorganization of the indigenous Hawaiian government—I believe that the integrity of the 
Commission's recommendation would be better served by a rigorous analysis of the principles of 
federal law that inform the various legislative enactments of the Congress extending federal 
recognition to certain other groups of indigenous peoples within the United States. In the more 
than 200 years that the federal government has been dealing with the indigenous peoples of this 
land, a robust and complex body of law has developed that should inform the Commission's 
consideration of S. 147. To suggest that Native Hawaiians are situated in some way that is 
fundamentally different than American Indians and Alaska Natives, and that therefore these 
principles do not apply, flies in the face of reason and common sense. 

Like the other indigenous peoples of the United States, the Native Hawaiians have a 
history that long pre-dates discovery of their lands by Westerners. Like American Indians and 
Alaska Natives, Native Hawaiians have experienced a long history of destructive federal policies 
aimed at eroding their land base, culture, governmental authority, and economies. But, like 
American Indians and Alaska Natives, the Native Hawaiian culture and community has survived 
this terrible history, and it is long past time that their right to self-determination be given full 
effect. 


The unique legal and political relationship that indigenous peoples have with the United 
States is based on our status as aboriginal people with pre-existing governments with whom the 
U.S. entered treaties and other agreements. It is this historical, political reality that provides the 
foundation for the unique relationship that has always existed—and continues to exist today— 
between the United States and the indigenous people whose homelands fall w'ithin the borders of 
the United States. 

The principles of federal law that apply to Congressional efforts to address the conditions 
of the indigenous peoples of the United States have their origin in the U.S. Constitution. One 
source of such constitutional authority is found in Article I, section 8. clause 3 of the 
Constitution which provides that, ‘‘the Congress shall have the authority to regulate commerce 
with the several States, foreign nations, and the Indian tribes.” 


51 


The courts have described Congress's power over Indian affairs as “plenary and 
exclusive.” 32 In one of its most recent rulings, the U.S. Supreme Court has described the dynamic 
nature of Congress’ constitutional authority in the field of Native affairs in this manner, “the 
Government’s Indian policies, applicable to numerous tribes with diverse cultures, affecting 
billions of acres of land, of necessity would fluctuate dramatically as the needs of the Nation and 
those of the tribes changed over time,” and “such major policy changes inevitably involve major 
changes in the metes and bounds of tribal sovereignty.” 33 

As, over the course of our history, the term “Indians” has been used to describe the 
indigenous people encountered in geographic areas of the continental United States beyond the 
original thirteen states that were parties to the first Constitution, including the indigenous native 
people of Alaska and Hawaii, it is both important and relevant to revisit the origins of this term. 

Historical documents and dictionaries make clear that the terms “Indians” and “Indian 
tribe” were terms derived from commonly-used European parlance which sought to describe the 
aboriginal, indigenous native people of the various nation states around the world as early as the 
1500s. These were never words that the indigenous peoples applied to themselves. The debates 
of the Continental Congress and the written discourse amongst the Framers of the Constitution as 
it relates to this provision of the Constitution use the terms “Indians” and “Indian tribes” 
interchangeably, and it was only in the last draft of the Constitution that emerged from the 
conference that the term “Indian tribes” was ultimately adopted. 

Understanding what is encompassed in these terms is significant for constitutional 
purposes, because they describe the scope of Congress’ authority to enact legislation affecting 
America's indigenous peoples, notwithstanding the fact that the Congress has from time to time 
chosen to define the indigenous, native people of the United States by reference to blood 
quantum or race. 34 And with reference to the issue of the use of blood quantum or race, it is 
Congress’ constitutional authority under the Indian Commerce Clause that has led the Supreme 
Court to draw a legal distinction between laws enacted for the benefit of America’s indigenous, 
native people and assertions that such laws, such as an Indian employment preference law, 
constitute racial discrimination. In the landmark case, Morton v. Mancari , 35 the U.S. Supreme 
Court observed: 

Literally every piece of legislation dealing with Indian tribes and reservations, 
and certainly all legislation dealing with the BIA, single out for special 
treatment a constituency of tribal Indians living on or near reservations. If these 
laws, derived from historical relationships and explicitly designed to help only 
Indians, were deemed invidious racial discrimination, an entire Title of the 
United States Code (25 U.S.C.) would be effectively erased and the solemn 
commitment of the Government towards the Indians would be jeopardized. 


32 United States v. Lara, 541 U.S. 193, 200 (2004). 

33 United States v. Lara, 541 U.S. 193, 200 (2004). 

34 Indian Reorganization Act of 1934, 25 U.S.C. § 461, et seq. 

35 417 U.S. 535, 94 S. Ct. 2474, 41 L.Ed.2d 290 (1974). 


52 



On numerous occasions this Court specifically has upheld legislation that 
singles out Indians for particular and special treatment. This unique status is of 
long standing....and its sources are diverse. As long as the special treatment can 
be tied rationally to the fulfillment of Congress’ unique obligation toward the 
Indians, such legislative judgments will not be disturbed. Here, where the 
preference is reasonable and rationally designed to further Indian self- 
government. we cannot say that Congress' classification violates due process. 

It is within this legal framework that the Congress has enacted legislation to extend 
federal recognition to various groups of America's indigenous peoples. As Professors Viet Dinh 
and Christopher Bartolomucci observed in their testimony submitted to the Commission for its 
January 20, 2006, briefing on S. 147, the U.S. Supreme Court has sustained this exercise of 
Congress’s constitutional authority most recently in 2004 when it - 

recognized Congress’ power to restore previously extinguished sovereign 
relations with Indian tribes. The Court observed that ‘Congress has restored 
previously extinguished tribal status - by re-recognizing a Tribe whose tribal 
existence it previously had terminated.’ Id. ( citing Congress’ restoration of the 
Menominee Tribe in 25 U.S.C. §§ 903-903f). And the Court cited the 1898 
annexation of Hawaii as an example of Congress’ power “to modify' the degree of 
autonomy enjoyed by a dependent sovereign that is not a State.” 36 

The argument that recognition of a Native Hawaiian governing entity would discriminate 
on the basis of race conflicts with the long-standing principles of federal law concerning the 
relationship between the United States government's and the indigenous peoples who have 
inhabited this land from time immemorial—a relationship that has long been recognized by 
Congress, the federal courts, and the Executive branch. Those making this argument are 
suggesting that Native Hawaiians should, and indeed must, be treated differently from the other 
indigenous peoples residing in what is now the United States. S. 147 is intended to establish 
parity for Native Hawaiians with the other indigenous peoples of America. Those who invoke 
the equal protection or due process clauses of the Constitution to oppose this legislation are using 
the very cornerstones of justice and fairness in our democracy to deny equal treatment to one 
group of indigenous people. 


Specific Concerns 

I would also like to address some of the specific concerns that were raised by 
Commissioners at the briefing and during our subsequent discussions. 


Constitutional Protections 

In the dialogue that took place between Commissioners and those presenting testimony 
on S. 147 in the January 20, 2006 briefing, there were questions posed with regard to the civil 


36 Lara. 124 S. Ct. at 205. 


53 



rights protections that would be afforded by a Native Hawaiian government to its citizens and to 
others, be they Native Hawaiian or non-Hawaiian, who voluntarily consent to the jurisdiction of 
the Native Hawaiian government. In this regard, I believe that it is important to understand, as 
several of the witnesses testified, that the provisions of the U.S. Constitution, including those 
protections of the amendments to the U.S. Constitution, apply to all acts of the Congress. 

Because federal law recognizes Indian tribes as sovereigns that pre-existed the formation 
of the United States and the U.S. Supreme Court has affirmed that the Indian tribes as sovereigns 
were not parties to the U.S. Constitution, Congress has enacted laws to extend the protections of 
many of the Constitution’s guarantees to Indian tribes. 

In contrast, there is no provision of S. 147 that exempts the Native Hawaiian government 
from the U.S. Constitution, and thus, the Native Hawaiian government must accord to all who 
come under the jurisdiction of the Native Hawaiian government all the protections and 
guarantees of the U.S. Constitution. In certifying that the organic governing documents of the 
Native Hawaiian government are consistent with applicable federal law, the Secretary of the 
Interior is required to assure that the organic governing documents are consistent with not only 
federal statutes but the protections and guarantees of the U.S. Constitution. 


Federal Regulations 

Over the course of the Commission’s deliberations, the suggestion was raised that Native 
Hawaiians should be required to use the Bureau of Indian Affairs regulatory process for seeking 
recognition. I would like to clarify that the recognition criteria established by regulation, 
however, represent only one way that a tribe can seek federal recognition. Tribes have also been 
recognized by legislation, executive order, and by court decisions. The Indian Commerce Clause 
gives Congress the authority to recognize groups of Indians as tribes. This Congressional power 
has been delegated to the Executive branch to take actions consistent with this recognition and it 

IT 

is pursuant to this authority that the recognition criteria mentioned were developed. Clearly, 
since delegated congressional power provides the basis for the regulatory recognition criteria, 
Congress retains the power to recognize tribes outside of these criteria as well. 

Congress has done just that with regard to certain groups of indigenous, native people of 
the United States who are not eligible to participate in the federal agency regulatory process- in 
some instances because the federal recognition of the native group was terminated by action of 
the Congress, or in other instances, because the native group does not reside within the 
continental United States. The Native Hawaiian people are a group who come within this latter 
category. They must pursue the federal recognition of their sovereignty, as given expression 
through the reorganization of a Native government, through Congressional action, because they 
are not eligible to participate in the federal regulatory process, by the express terms of the 
regulations. 


37 Felix Cohen’s Handbook of Federal Indian Law, Sec. 3.02[4] (2005 ed.). 


54 



Substitute Amendment 


Because the Commission's recommendation is tied to the amendment in the nature of a 
substitute to S. 147 that was reported by the Senate Indian Affairs Committee on March 9, 2006, 
it fails to take into consideration the outcome of negotiations that were conducted with 
representatives of the White House Office of Management and Budget, the Department of Justice 
and the State of Hawaii and which resulted in further amendments to S. 147. 

At its January 20, 2006 briefing, a copy of the substitute amendment to S. 147 containing 
the negotiated amendments to the bill was provided to the Commissioners by Noe Kalipi, who 
serves as the Minority Staff Director of the Senate Committee on Veterans Affairs for Senator 
Akaka and who provided testimony to the Commission at the January 20, 2006 briefing. 

Despite the fact that Ms. Kalipi explained that it would be this substitute amendment that 
would be the subject of the Senate's consideration when S. 147 is taken up in the Senate, the 
Commissioners voted to base the Commission's recommendation on an earlier, and now 
superseded version of the bill. Given the participation of representatives of the White House, the 
Justice Department, and the State of Hawaii in developing the provisions of the substitute 
amendment, it is my view that the integrity of the Commission's report would have been better 
served by basing the Commission's finding on the substitute amendment to S. 147. 


Other Groups 

During the Commission briefing, the question was raised whether groups of illegal or 
legal immigrants or their descendants with a shared ethnicity, or even a religious group, would 
be able to claim to be indigenous people and seek special rights. This slippery slope argument is 
unfounded. Any of these unnamed groups could attempt to seek self-governance rights at any 
time, regardless of passage of this bill. However, there are a finite number of indigenous groups 
whose homelands are now within the boundaries of the United States, and it would be impossible 
for any other racial or ethnic group to fit within the authority given to Congress in the Indian 
Commerce Clause. 


Existence of Native Governments 

While the Commission’s recommendation against passage of S. 147 suggests that the 
Native Hawaiian Government Reorganization Act falls within the category of legislation that 
“would discriminate on the basis of race or national origin and further subdivide the American 
people into discrete subgroups accorded varying degrees of privilege,” I find no evidence in any 
of the provisions of S. 147 that would support such a conclusion. Nor am I aware of any 
research into or documentation of Congressional intent that has been undertaken by the 
Commission that would lend support to the notion that the bill is intended to subdivide discrete 
subgroups accorded varying degrees of privilege. In fact, I can find no basis for that conclusion 
in the record of our briefing or subsequent submissions other than assertions of personal opinion. 


55 


I respectfully remind my colleagues that in 49 other states indigenous nations have 
peacefully coexisted with our neighbors for many years. I can think of no reason, nor did we hear 
any testimony to suggest one, why this would not also be the case in Hawaii. As a tribal leader, I 
am deeply troubled that the Commission recommendation could be read to suggest that the 
existence of Indian tribes within the federal system is somehow undesirable and should not be 
extended to Native Hawaiians. 


Conclusion 

Native Hawaiians have now suffered more than a century of injustice, and reaffirmation 
of the inherent Native Hawaiian right to self-governance by the federal government is long 
overdue. S. 147 will begin the process of righting the wrong committed by the United States 
against the indigenous Hawaiian government and will help to ensure the preservation of the 
Hawaiian culture. As President Cleveland said so long ago, I believe that once Congress 
acknowledged the wrong that had been committed against the Native Hawaiians, our national 
character compels that we attempt to right that wrong. 

It is long past time for the United States to stop ignoring the historic injustices our nation has 
perpetrated against the indigenous peoples of the United States. If we continue down this path, 
our standing as a model of justice and equality for the rest of the world will be jeopardized. 

For all of the above reasons, I dissent from the Commission’s recommendation. 


56 


Appendix A 

The substitute amendment to S. 147 which was presented to the Commissioners on 
January 20, 2006 by Ms. Kalipi contains the following provisions - 

• clarification that the United States has a special political and legal relationship for the 
welfare of the native peoples of the United States, including Native Hawaiians; 

• clarification that when transferring the federal government's responsibility for the 
administration of the Hawaiian Home Lands to the State of Hawaii, the United States 
retained the exclusive right to consent to any action affecting the lands included in the 
trust and amendments to the Hawaiian Homes Commission Act that are enacted by the 
Hawaii State legislation affecting the beneficiaries under the Act; 

• clarification that the Office of Native Hawaiian Relations within the U.S. Department of 
the Interior has the duty to consult with the Interagency Coordinating Group, other 
federal agencies, and the State of Hawaii on policies, practices, and proposed actions 
affecting Native Hawaiian resources, rights or lands; 

• clarification that the section of S. 147 addressing the duties of the Office of Native 
Hawaiian Relations shall have no applicability to the Department of Defense or to any 
agency or component of the Department of Defense, but the Secretary of Defense may 
designate one or more officials as liaison to the Office; 

• clarification that the duties of the Federal agency members of the Interagency 
Coordinating Group are to consult with the Native Hawaiian Governing Entity, through 
the coordination referred to in section 6(d)(1) of S. 147, but the consultation obligation 
established in this provision shall apply only after the satisfaction of all the conditions 
refereed to in section 7(c)(6); 

• clarification that the provisions of S. 147 relating to the duties of the member federal 
agencies of the Interagency Coordinating Group shall have no applicability to the 
Department of Defense or to any agency or component of the Department of Defense, but 
that the Secretary of Defense may designate one or more officials as liaison to the 
Interagency Coordinating Group; 

• clarification that not later than 180 days after the date of enactment of S. 147, the 
Secretary of the Interior shall appoint the members of the Commission in accordance 
with subparagraph (B) of section 7(b)(2), and that in making appointments to the 
Commission, the Secretary may take into consideration a recommendation made by any 
Native Hawaiian organization; 

• clarification that rather than requiring that each member of the Commission be Native 
Hawaiian, that each member of the Commission shall demonstrate, as determined by the 
Interior Secretary, that he or she has not less than 10 years experience in the study and 


57 


determination of Native Hawaiian genealogy, and an ability to read and translate into 
English documents written in the Hawaiian language; 

• clarification that among the matters that can be the subject of negotiations amongst the 
United States, the State of Hawaii, and the Native Hawaiian Governing Entity are 
grievances regarding assertions of historical wrongs committed against Native Hawaiians 
by the United States or by the State of Hawaii; 

• clarification that any governmental authority or power to be exercised by the Native 
Hawaiian Governing Entity which is currently exercised by the state or federal 
governments shall be exercised by the Native Hawaiian Governing Entity only as agreed 
to in negotiations pursuant to section 8(b)(1) of S. 147; and beginning on the date on 
which legislation to implement such agreement has been enacted by the U.S. Congress, 
when applicable, and by the State of Hawaii, when applicable, and that this includes any 
required modifications to the Hawaii State Constitution in accordance with the Hawaii 
Revised Statutes; 

• with regard to claims, a clarification that nothing in S. 147 — 

o creates a cause of action against the United States or any other entity or person; 
o alters existing law, including existing case law, regarding obligations on the part of 
the United States or the State of Hawaii with regard to Native Hawaiians or any 
Native Hawaiian entity; 

o creates any obligations that did not exist in any source of Federal law prior to 
enactment of this Act; or 

o established authority for the recognition of Native Hawaiian groups other than the 
Native Hawaiian Governing Entity; 

• with regard to the sovereign immunity of the United States and the State of Hawaii, 
provides that nothing in S. 147 is intended to create or allow to be maintained in any 
court any potential breach-of-trust actions, land claims, resource-protection or resource- 
management claims, or similar types of claims brought by or on behalf of Native 
Hawaiians or the Native Hawaiian governing entity for equitable, monetary, or 
Administrative Procedure Act-based relief against the United States or the State of 
Hawaii, whether or not such claims specifically assert an alleged breach of trust, call for 
an accounting, seek declaratory relief, or seek the recovery of or compensation for lands 
once held by Native Hawaiians; 

• with regard to the establishment and retention of the sovereign immunity of the United 
States and the State of Hawaii, a clarification that to effectuate the ends expressed in 
section 8(c)(1) and 8(c)(2)(A), and that notwithstanding any other provision of Federal 
law, the United States retains its sovereign immunity to any claim that existed prior to 
enactment of S. 147, including but not limited to any claim based in whole or part on past 
events, and which could be brought by Native Hawaiians or any Native Hawaiian 
governing entity, and further providing that no pre-existing waiver of sovereign 
immunity, including but not limited to waivers set forth in chapter 7 of part I title 5, 
United States Code, and sections 1505 and 2409a of title 28, United States Code, shall be 


58 


applicable to any such claims, and providing that this complete retention or reclaiming of 
sovereign immunity also applies to every claim that might attempt to rely on S. 147 for 
support, without regard to the source of law under which any such claim might be 
asserted; 

• with regard to the effect of these provisions relating to claims and sovereign immunity, a 
clarification that it is the general effect of section 8(c)(2)(A), along with claims of a 
similar nature and claims arising out of the same nucleus of operative facts as could give 
rise to claims of the specific types referred to in section 8(c)(2)(A) be rendered 
nonjusticiable in suits brought by plaintiffs other than the federal government; 

• with regard to the sovereign immunity of the State of Hawaii, clarification that 
notwithstanding any other provision of federal law, the State of Hawaii retains its 
sovereign immunity, unless waived in accord with state law, regarding Native Hawaiians, 
that existed prior to enactment of S. 147, and further providing that nothing in S. 147 is to 
be construed to constitute an override pursuant to section 5 of the Fourteenth Amendment 
of state sovereign immunity held under the Eleventh Amendment to the U.S. 
Constitution; 

• clarification that the Native Hawaiian Governing Entity and Native Hawaiians may not 
conduct gaming activities either as a matter of claimed inherent authority or under the 
authority of any Federal law, including the Indian Gaming Regulatory Act, or under any 
regulations under that Act promulgated by the Secretary of the Interior or the National 
Indian Gaming Commission, and further providing that the foregoing prohibition apply 
regardless of whether gaming by Native Hawaiians or the Native Hawaiian governing 
entity would be located on land within the State of Hawaii or within any other state or 
territory of the United States; 

• clarification that notwithstanding any other provision of law, including but not limited to 
part 151 of title 25, Code of Federal Regulations, the Secretary of the Interior shall not 
take land into trust on behalf of individuals or groups claiming to be Native Hawaiian or 
on behalf of the Native Hawaiian Governing Entity; 

• clarification that the Indian Trade and Intercourse Act, 25 U.S.C. § 177, does not, has 
never, and will not apply after enactment of S. 147 to lands or land transfers present, past 
or future in the State of Hawaii, and further providing that if a court were to construe the 
Trade and Intercourse Act to apply to lands or land transfers in Hawaii before the date of 
enactment of S. 147, then any transfer of land or natural resources located within the 
State of Hawaii prior to the date of enactment of S. 147, by or on behalf of all the Native 
Hawaiian people, or individual Native Hawaiians, shall be deemed to have been made in 
accordance with the Indian Trade and Intercourse Act and any other provision of Federal 
law that specifically applies to transfers of land or natural resources from, by, or on 
behalf of an Indian tribe. Native Hawaiians, or Native Hawaiian entities; 

• clarification that S. 147 will result in the recognition of a single Native Hawaiian 
Governing Entity, and that additional Native Hawaiian groups shall not be eligible for 


59 


acknowledgment pursuant to the Federal Acknowledgment Process set forth in part 83 of 
title 25 of the Code of Federal Regulations or any other administrative or 
acknowledgment process; 

• with respect to jurisdiction, clarification that nothing in S. 147 alters the civil or criminal 
jurisdiction of the United States or the State of Hawaii over the lands and persons within 
the State of Hawaii, and that the status quo of federal and state jurisdiction can change 
only as a result of further legislation, if any, enacted after the conclusion, in relevant part, 
of the negotiation process established in section 8(b); 

• with regard to the eligibility of Native Hawaiians for federal programs and services 
provided to Indians because of their status under Federal law as Indians, clarification that 
notwithstanding section 7 (c)(6), because of the eligibility of the Native Hawaiian 
Governing Entity and its citizens for Native Hawaiian programs and services in 
accordance with subsection (g), nothing in S. 147 provides an authorization for eligibility 
to participate in any Indian program or service to any individual or entity not otherwise 
eligible for the program or service under applicable Federal law; and 

• clarification that the Native Hawaiian governing entity and its citizens shall be eligible 
for Native Hawaiian programs and services to the extent and in the manner provided by 
other applicable laws. 


60 


Appendix B 


Apology 

Resolution 

PUBLIC LAW 103-150 

To acknowledge the 100th anniversary of the Jan. 17, 1893, 
overthrow of the Kingdom of Hawaii, and to offer an apology to 
Native Hawaiians on behalf of the United States for the 
overthrow of the Kingdom of Hawaii. 

Signed by President William Clinton on Nov. 23, 1993 


Public Law 

103-150 

In the Congress of the United States 
Congressional Record, Vol. 139 (1993) 
October 27, considered and passes Senate 
November 15, considered and passes House 


Calendar No. 185 103rd Congress 1st Session 


Joint Resolution 

To acknowledge the 100th anniversary of the January 17, 1893 overthrow of the Kingdom of 
Hawaii, and to offer an apology to Native Hawaiians on behalf of the United States for the 
overthrow of the Kingdom of Hawaii. 


61 


Whereas, prior to the arrival of the first Europeans in 1778, the Native Hawaiian people lived in 
a highly organized, self-sufficient, subsistent social system based on communal land tenure with 
a sophisticated language, culture, and religion; 

Whereas, a unified monarchical government of the Hawaiian Islands was established in 1810 
under Kamehameha I, the first King of Hawai‘i; 

Whereas, from 1826 until 1893, the United States recognized the independence of the Kingdom 
of Hawai‘i, extended full and complete diplomatic recognition to the Hawaiian Government, and 
entered into treaties and conventions with the Hawaiian monarchs to govern commerce and 
navigation in 1826, 1842, 1849, 1875, and 1887; 

Whereas, the Congregational Church (now known as the United Church of Christ), through its 
American Board of Commissioners for Foreign Missions, sponsored and sent more than 100 
missionaries to the Kingdom of Hawaii between 1820 and 1850; 

Whereas, on January 14, 1893, John L. Stevens (hereafter referred to in this Resolution as the 
“United States Minister”), the United States Minister assigned to the sovereign and independent 
Kingdom of Hawai‘i conspired with a small group of non-Hawaiian residents of the Kingdom of 
Hawaii, including citizens of the United States, to overthrow the indigenous and lawful 
Government of Hawaii; 

Whereas, in pursuance of the conspiracy to overthrow the Government of Hawaii, the United 
States Minister and the naval representatives of the United States caused armed naval forces of 
the United States to invade the sovereign Hawaiian nation on January 16, 1893, and to position 
themselves near the Hawaiian Government buildings and the Iolani Palace to intimidate Queen 
Lili‘uokalani and her Government; 

Whereas, on the afternoon of January 17, 1893, a Committee of Safety that represented the 
American and European sugar planters, descendants of missionaries, and financiers deposed the 
Hawaiian monarchy and proclaimed the establishment of a Provisional Government; 

Whereas, the United States Minister thereupon extended diplomatic recognition to the 
Provisional Government that was formed by the conspirators without the consent of the Native 
Hawaiian people or the lawful Government of Hawai‘i and in violation of treaties between the 
two nations and of international law; 

Whereas, soon thereafter, when informed of the risk of bloodshed with resistance, Queen 
Lili‘uokalani issued the following statement yielding her authority to the United States 
Government rather than to the Provisional Government: 

"I Lili ‘uokalani, by the Grace of God and under the Constitution of the 
Hawaiian Kingdom, Queen, do hereby solemnly protest against any and all 
acts done against myself and the Constitutional Government of the Hawaiian 
Kingdom by certain persons claiming to have established a Provisional 
Government of and for this Kingdom. 

“That I yield to the superior force of the United States of America whose 
Minister Plenipotentiary, His Excellency John L. Stevens, has caused United 
States troops to be landed a Honolulu and declared that he would support the 
Provisional Government. 

“Now to avoid any collision of armed forces, and perhaps the loss of life, I 
do this under protest and impelled by said force yield my authority until such 
time as the Government of the United States shall, upon facts being presented 


62 


to it, undo the action of its representatives and reinstate me in the authority 
which I claim as the Constitutional Sovereign of the Hawaiian Islands. 
Done at Honolulu this 17th day of January, A.D. 1893.; 


Whereas , without the active support and intervention by the United States diplomatic and 
military representatives, the insurrection against the Government of Queen Lili‘uokalani would 
have failed for lack of popular support and insufficient arms; 

Whereas, on February 1, 1893, the United States Minister raised the American flag and 
proclaimed Hawaii to be a protectorate of the United States; 

Whereas, the report of a Presidentially established investigation conducted by former 
Congressman James Blount into the events surrounding the insurrection and overthrow of 
January 17, 1893, concluded that the United States diplomatic and military representatives had 
abused their authority and were responsible for the change in government; 

Whereas, as a result of this investigation, the United States Minister to Hawaii was recalled 
from his diplomatic post and the military commander of the United States armed forces stationed 
in Hawaii was disciplined and forced to resign his commission; 

Whereas, in a message to Congress on December 18, 1893, President Grover Cleveland reported 
fully and accurately on the illegal acts of the conspirators, described such acts as an “act of war, 
committed with the participation of a diplomatic representative of the United States and without 
authority of Congress”, and acknowledged that by such acts the government of a peaceful and 
friendly people was overthrown; 

Whereas, President Cleveland further concluded that a “substantial wrong has thus been done 
which a due regard for our national character as well as the rights of the injured people requires 
we should endeavor to repair” and called for the restoration of the Hawaiian monarchy; 

Whereas, the Provisional Government protested President Cleveland's call for the restoration of 
the monarchy and continued to hold state power and pursue annexation to the United States; 
Whereas, the Provisional Government successfully lobbied the Committee on Foreign Relations 
of the Senate (hereafter referred to in this Resolution as the “Committee”) to conduct a new 
investigation into the events surrounding the overthrow of the monarchy; 

Whereas, the Committee and its chairman, Senator John Morgan, conducted hearings in 
Washington, D.C., from December 27,1893, through February 26, 1894, in which members of 
the Provisional Government justified and condoned the actions of the United States Minister and 
recommended annexation of Hawaii; 

Whereas, although the Provisional Government was able to obscure the role of the United States 
in the illegal overthrow of the Hawaiian monarchy, it was unable to rally the support from two- 
thirds of the Senate needed to ratify a treaty of annexation; 

Whereas, on July 4, 1894, the Provisional Government declared itself to be the Republic of 
Hawaii; 

Whereas, on January 24, 1895, while imprisoned in Iolani Palace, Queen Lilfuokalani was 
forced by representatives of the Republic of Hawaii to officially abdicate her throne; 

Whereas, in the 1896 United States Presidential election, William McKinley replaced Grover 
Cleveland; 

Whereas, on July 7, 1898, as a consequence of the Spanish-American War, President McKinley 
signed the Newlands Joint Resolution that provided for the annexation of Hawaii; 


63 


Whereas , through the Newlands Resolution, the self-declared Republic of Hawaii ceded 
sovereignty over the Hawaiian Islands to the United States; 

Whereas, the Republic of Hawai‘i also ceded 1,800,000 acres of crown, government 
and public lands of the Kingdom of Hawaii, without the consent of or compensation to the 
Native Hawaiian people of Hawaii or their sovereign government; 

Whereas, the Congress, through the Newlands Resolution, ratified the cession, annexed Hawaii 
as part of the United States, and vested title to the lands in Hawaii in the United States; 

Whereas, the Newlands Resolution also specified that treaties existing between Hawaii and 
foreign nations were to immediately cease and be replaced by United States treaties with such 
nations; 

Whereas, the Newlands Resolution effected the transaction between the Republic of Hawaii and 
the United States Government; 

Whereas, the indigenous Hawaiian people never directly relinquished their claims to their 
inherent sovereignty as a people or over their national lands to the United States, either through 
their monarchy or through a plebiscite or referendum; 

Whereas, on April 30, 1900, President McKinley signed the Organic Act that provided a 
government for the territory of Hawaii and defined the political structure and powers of the 
newly established Territorial Government and its relationship to the United States; 

Whereas, on August 21,1959, Hawaii became the 50th State of the United States; 

Whereas, the health and well-being of the Native Hawaiian people is intrinsically tied to their 
deep feelings and attachment to the land; 

Whereas, the long-range economic and social changes in Hawai‘i over the nineteenth and early 
twentieth centuries have been devastating to the population and to the health and well-being of 
the Hawaiian people; 

Whereas, the Native Hawaiian people are determined to preserve, develop and transmit to future 
generations their ancestral territory, and their cultural identity in accordance with their own 
spiritual and traditional beliefs, customs, practices, language, and social institutions; 

Whereas, in order to promote racial harmony and cultural understanding, the Legislature of the 
State of Hawai‘i has determined that the year 1993, should serve Hawai‘i as a year of special 
reflection on the rights and dignities of the Native Hawaiians in the Hawaiian and the American 
societies; 

Whereas, the Eighteenth General Synod of the United Church of Christ in recognition of the 
denomination’s historical complicity in the illegal overthrow of the Kingdom of Hawai‘i in 1893 
directed the Office of the President of the United Church of Christ to offer a public apology to 
the Native Hawaiian people and to initiate the process of reconciliation between the United 
Church of Christ and the Native Hawaiians; and 

Whereas, it is proper and timely for the Congress on the occasion of the impending 100th 
anniversary of the event, to acknowledge the historic significance of the illegal overthrow of the 
Kingdom of Hawaii, to express its deep regret to the Native Hawaiian people, and to support the 
reconciliation efforts of the State of Hawaii and the United Church of Christ with Native 
Hawaiians; 

Now, therefore, be it Resolved by the Senate and House of Representatives of the United States 
of America in Congress assembled, 


64 


SECTION 1. ACKNOWLEDGMENT AND APOLOGY. 


The Congress - 

(1) on the occasion of the 100th anniversary of the illegal overthrow of the Kingdom of Hawaii 
on January 17, 1893, acknowledges the historical significance of this event which resulted in the 
suppression of the inherent sovereignty' of the Native Hawaiian people; 

(2) recognizes and commends efforts of reconciliation initiated by the State of Hawaii and the 
United Church of Christ with Native Hawaiians; 

(3) apologizes to Native Hawaiians on behalf of the people of the United States for the overthrow 
of the Kingdom of Hawaii on January 17, 1893 with the participation of agents and citizens of 
the United States, and the deprivation of the rights of Native Hawaiians to self-determination; 

(4) expresses its commitment to acknowledge the ramifications of the overthrow of the Kingdom 
of Hawaii, in order to provide a proper foundation for reconciliation between the United States 
and the Native Hawaiian people; and 

(5) urges the President of the United States to also acknowledge the ramifications of the 
overthrow of the Kingdom of Hawaii and to support reconciliation efforts between the United 
States and the Native Hawaiian people. 


SEC. 2. DEFINITIONS. 

As used in this Joint Resolution, the term "Native Hawaiians” means any individual who is a 
descendent of the aboriginal people who, prior to 1778, occupied and exercised sovereignty in 
the area that now constitutes the State of Hawaii. 


SEC. 3. DISCLAIMER. 

Nothing in this Joint Resolution is intended to serve as a settlement of any claims against the 
United States. 

— Approved November 23, 1993 


65 


Speaker Biographies 


Davelyn Noelani Kalipi 

Davelyn Noelani Kalipi was bom and raised in Hilo, Hawaii. She graduated with a bachelor's 
degree in Government & Politics/ Economics from George Mason University and a juris doctor 
from the National Law Center at George Washington University. Ms. Kalipi served in the 
United States Army Judge Advocate General’s Corps from 1996 to 1999. Ms. Kalipi is licensed 
to practice law in Hawaii and the District of Columbia. Ms. Kalipi served as Senator Akaka’s 
Counsel from 1999 to 2005 and advised him on legislative issues pertaining to Veterans' Affairs, 
Judiciary, Homeland Security, Armed Services, U.S. Territories and Pacific Islands, and Native 
Hawaiians. Ms. Kalipi was appointed Democratic Staff Director on the Senate Committee on 
Veterans' Affairs in February 2005. 


H. Christopher Bartolomucci 

A partner with Hogan & Hartson, Mr. Bartolomucci focuses on appellate and Supreme Court 
litigation and other litigation involving complex legal issues and issues of constitutional law. 

Mr. Bartolomucci served in the administration of President George W. Bush as associate counsel 
to the president from January 20, 2001, to August 15, 2003. While serving in the White House, 
he assisted the president in matters ranging from the selection of federal judges to the 
consideration of pardon requests. He also has served as counsel to the inspector general of the 
District of Columbia; associate special counsel to the Senate Whitewater Committee; and a 
Bristow Fellow in the Office of the Solicitor General of the U.S. Department of Justice. Mr. 
Bartolomucci holds a bachelor’s degree, summa cum laude, from Dartmouth College, and 
graduated cum laude from Harvard Law School. In law school, Mr. Bartolomucci served as an 
editor of the Harvard Law Review. Following law school, he clerked for The Honorable William 
L. Garwood of the U.S. Court of Appeals for the Fifth Circuit. 


H. William Burgess 

H. William Burgess is an attorney in Hawaii. After graduating from the University of Virginia 
Law School in 1953, he enrolled in the U.S. Marine Corps from 1953 to 1958 as a fighter pilot 
and legal officer. Mr. Burgess then joined the law firm of Carlsmith & Carlsmith and then A. 
William Barlow. In 1965, Mr. Burgess opened his own law office, where he focused full time on 
business and real property litigation. From 1969 to 1972, he was the volunteer president of the 
Legal Aid Society. And in 1979, Burgess was one of the founders and first president of the 
Neighborhood Justice Center of Honolulu, now called the Mediation Center of the Pacific. In 
1994, he retired from his practice and became a trustee for a Maui shopping center in Chapter 11 
reorganization. In July 2000, in Arakaki v. State of Hawaii , Mr. Burgess challenged the 
requirement that the trustees of the Office of Hawaiian Affairs be of Hawaiian ancestry. In 
March 2002, in Arakaki v. Lingle, Mr. Burgess challenged the constitutionality of the Office of 
Hawaiian Affairs and the Hawaiian Homes Commission Act. Mr. Burgess is a member of the 
Grassroot Institute of Hawaii, a nonprofit organization that has gained prominence through its 


66 


intense campaign to educate the public and Congress about the Native Hawaiian Government 
Reorganization Act 


Gail Heriot 

Ms. Heriot is a Professor of Law at the University of San Diego School of Law. Ms. Heriot was 
formerly Associate Dean for Academic Affairs & Professor of Law at George Mason University 
School of Law and Counsel to the Senate Judiciary Committee. She had a litigation practice as 
an associate at Hogan & Hartson, in Washington D.C. and Mayer, Brown & Platt at Chicago, 
Illinois. After graduating cum laude from the University of Chicago Law School, she served as a 
law clerk for the Honorable Seymour F. Simon of the Supreme Court of Illinois. She has 
numerous academic publications, such as: Faculty Editor for A Symposium on Direct 
Democracy: An Introduction at the Journal of Contemporary Legal Issues', Standardized Tests 
under the Magnifying Glass: A Defense of the LSA T Against Recent Charges of Bias at the 
TEXAS Review OF Law & POLITICS; and. Strict Scrutiny, Public Opinion and Racial Preferences 
on Campus: Should the Courts Find a Narrowly Tailored Solution at the Harvard JOURNAL OF 
Legislation. 


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